MHCC Mental Health Rights Manual

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Chapter 4 Section H: Legal proceedings under the Mental Health Act 2007 (NSW)

The Mental Health Review Tribunal has a wide range of functions under the Mental Health Act 2007 (NSW).

The Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the Mental Health Act 2007 (NSW). It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness.

This section provides general information on the legal processes followed:

4H.1: The Mental Health Inquiry

The Authorised Medical Officer of a Mental Health Facility in which an assessable person has been detained must present the person to the Mental Health Review Tribunal for a ‘Mental Health Inquiry’ ‘as soon as practicable’ after their admission to the Facility. In practice, this is generally within approximately two or three weeks after admission.

A Mental Health Inquiry may be conducted in person at the Mental Health Facility, or by audio-visual link to the Facility from the Mental Health Review Tribunal’s Gladesville premises. Live hearings at Mental Health Facilities (where these are conducted) are usually held every two weeks.

The Authorised Medical Officer must give you notice of the date of your Mental Health Inquiry. For more about the notice you should get, click here. They must also give notice of the Mental Health Inquiry to your Primary Carer.

At the Mental Health Inquiry, the Authorised Medical Officer is likely to ask the Mental Health Review Tribunal either to make an Involuntary Patient Order authorising your continued detention and treatment in hospital as an involuntary patient, or a Community Treatment Order that would authorise your compulsory treatment in the community. If made, the Community Treatment Order would have the effect of discharging you from hospital.

You are entitled to be legally represented at the Mental Health Inquiry. Legal Aid is available to all persons who are required to appear before a Mental Health Inquiry. A ‘duty solicitor’ will be rostered to represent you and any other persons who are to be presented for a Mental Health Inquiry that day. They are likely to visit with you to obtain your views and develop your case for presentation to the Tribunal the day before the Mental Health Inquiry is held or on the day of the Inquiry prior to the hearing. You can also be represented by a private solicitor at your own expense.

You can also have a community language interpreter if you need one to understand what is happening at the hearing.

At the hearing, the Authorised Medical Officer will usually be represented by a Registrar. Sometimes other medical and allied health staff from the Mental Health Facility will also attend, such as a Consultant Psychiatrist, Career Medical Officer, Social Worker, Psychologist or Nurse. If the Authorised Medical Officer has applied to the Tribunal to make a Community Treatment Order it is also likely that the proposed Case Manager from the Community Mental Health Facility that will be responsible for implementing the Order, if it is made, will attend either in person or by telephone.

You must attend (or be presented) to the Tribunal at the Mental Health Inquiry. If there is a reason why you cannot, or if you refuse to, attend the usual venue where hearings are conducted, the Tribunal member may visit you on the ward. If appropriate the Inquiry can be conducted at your bedside or in another place.

Apart from you and your legal representative, your Designated Carer or Principle Care Provider is entitled to participate in the Mental Health Inquiry. Other people, such other family members, patient advocates, and staff of non-government agencies that support you in the community may also participate in the Inquiry. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.

At the beginning of the hearing the Tribunal Member will introduce himself or herself and ask everyone else to do so. The Tribunal Member is not a Magistrate (as once was the case), so you should refer to them as “Tribunal Member” or more simply as “Mr or Ms (surname).” The Tribunal will usually refer to participants in the hearing using their title and surname (for example: Ms Chan, Dr Nyguen), but in some cases may use participants’ first names.

They will then review the documents of your admission (the Schedule 1 Medical Certificate or Request for assessment for example, and the Form 1 Medical Certificates) to ensure that your initial detention has been in accordance with the law, and that the Tribunal has the power to conduct the Mental Health Inquiry.

There are other important formalities that must also be considered at the commencement of the hearing. The Tribunal will check that you have been given a Statement of Rights, and that you and your Designated Carer have been given proper Notice of the Mental Health Inquiry. The Tribunal will also ask the treating team to comment on whether you have been administered any medication that would inhibit you communicating with your legal representative and the Tribunal in the course of the hearing.

The Tribunal Member will then explain the purpose and the Mental Health Inquiry and the process that will be followed in the hearing.

Prior to the hearing, the Authorised Medical Officer will have provided the Tribunal with a report (sometimes more than one) that outlines the treating team’s views. Usually, the Tribunal member will also be provided with copies of your medical progress notes for approximately one week prior to the hearing. The Tribunal will usually note the written evidence that is before it for the purpose of the hearing, and confirm with your legal representative that they have had access to this material.

The Tribunal will then ask the medical team to explain the reasons why the Involuntary Treatment Order, Community Treatment Order and any other Order is sought. Your legal representative will then have an opportunity to ask any questions on your behalf. The Tribunal Member is also likely to have questions for the treating team.

The Tribunal will then ask for your views, and those of your Designated  Carer, and any other persons who have attended the hearing. You can choose to present your views through your solicitor, or speak directly to the Tribunal, or both. The Tribunal Member is also likely to have questions for you and other participants in the hearing.

Once the Tribunal Member has heard from each participant and any questions have been answered they will make a decision based on the application and the written and oral evidence before them.

Mental Health Inquiries usually take about 20 to 30 minutes to complete, but they can take a great deal longer if there are complex issues to explore and or there are a number of people who want to give evidence.

Mental Health Inquiries are usually conducted in a relatively informal manner. However, they do have an important purpose and an underlying legal structure that must be observed. The Tribunal member is therefore likely to insist on basic ‘ground rules’ for participation, including that only one person speak at once, that everyone speaks to the Tribunal and not to each other, and that each participant treats each other participant with basic courtesy.

A Mental Health Inquiry can be set down, or referred for hearing before a three-member panel of the Mental Health Review Tribunal is there is a good reason for doing so, for example, because the hearing raises complex or contentious medical evidence where the expertise of a psychiatrist and other member would be of assistance in the decision-making process.

To find out more about what happens at the hearing, click here.

There is a limit on how long the Mental Health Review Tribunal can order you to stay in hospital.

A person who is ‘mentally disordered’ is not taken to see the Mental Health Review Tribunal for an initial inquiry because they must be discharged automatically after three working days.

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. These changes are now in force.The Mental Health Act 2007 (NSW) has now changed the term “Primary Carer” to that of “Designated Carer”. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.

4H.1.1: How long can I be kept in hospital?

If the Authorised Medical Officer of a Mental Health Facility in which you are detained as an assessable person wants you to remain in hospital, they must ask the Mental Health Review Tribunal to conduct a Mental Health Inquiry in relation to your detention, and apply to the Tribunal for Involuntary Patient Order that will authorise your continued detention as an involuntary patient.

If the Mental Health Review Tribunal makes an Involuntary Patient Order it must also set a review date for that order. Reviews are conducted by three-member panels of the Mental Health Review Tribunal.

An Involuntary Patient Order must be reviewed on or prior to the review date or it lapses. In other words you cannot lawfully be detained in hospital as an involuntary patient beyond the date set for review of the Involuntary Patient Order.

The maximum time that can elapse before your involuntary patient status is reviewed by the Tribunal is 3 months. However, in most cases the Tribunal will set an earlier review date.

It is important to understand that the ‘review date’ for your Involuntary Patient Order is not a ‘discharge date.’ The Authorised Medical Officer must discharge you from hospital as soon as they form the opinion that you are no longer a mentally ill person, or that there is other care of a less restrictive kind available that is consistent with your safe and effective care. You may therefore be discharged before the review date is reached.

Alternatively, if at the time your Involuntary Patient Order is reviewed by the Tribunal, the Authorised Medical Officer is of the opinion that you remain mentally ill, and that there is no other less restrictive care available that is consistent with your safe and effective care, he or she may ask the Tribunal to extend your Involuntary Patient Order.

Extensions of Involuntary Patient Orders are for periods of 3 months during the first year of admission, and for 6 months thereafter, although a 12 month extension can be granted in special circumstances.

At a Mental Health Inquiry, the Mental Health Review Tribunal can also put you on a Community Treatment Order or discharge you into the care of your Designated Carer.

For more about what the Mental Health Review Tribunal can and can’t do, click here.

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 (NSW). These changes are now in force. The Mental Health Act 2007 (NSW) as changed the term “Primary Carer” to that of “Designated Carer”. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.

4H.1.2: Notice of hearing

Soon after you have been detained in a Mental Health Facility as an assessable person, you must be given notice of the date of the Mental Health Inquiry. Notice of the inquiry will also be given to your Designated Carer. Other relatives or friends are allowed to be at the inquiry.

If you decide you don't want your relatives or friends to come to the Inquiry, just tell the social worker or the nurse-in-charge. It is up to the Mental Health Review Tribunal to decide who will be allowed to give their views at the inquiry.

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 (NSW). These changes are now in force.The Mental Health Act 2007 (NSW) has changed the term “Primary Carer” to that of “Designated Carer”. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture. 

4H.1.3: Interpreters

If English is not your first language and you want to have an interpreter at the Mental Health Inquiry, you should be given an interpreter at no cost to you. An interpreter should also be provided if your Designated Carer or family members who intend to participate in the Inquiry, require it. Staff at the Mental Health Facility will usually arrange this for you without you having to ask. However, it is probably a good idea to check that staff know that an interpreter will be required and that one has been booked for your Inquiry. If you need an interpreter, you should ask for a qualified interpreter as soon as possible after you are formally told about the mental health inquiry.

You cannot rely upon a family member or friend to be the interpreter at the Inquiry. The interpreter must be an independent, accredited health interpreter.

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. These changes are now in force. The Mental Health Act 2007 (NSW) has changed the term “Primary Carer” to that of “Designated Carer”. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.

4H.1.4: Information on file

At the Mental Health Inquiry, the Mental Health Review Tribunal will sometimes have access to your medical file and it will have access to any reports specially prepared for the hearing. If it does not have access to your medical file, the Tribunal will usually have access to copies of your medical progress notes for approximately the week leading up to the Inquiry. These reports will include a report submitted on behalf of the Authorised Medical Officer, usually by a Psychiatric Registrar. There may also be other reports provided to the Tribunal, such as a report from a social worker, occupational therapist, psychologist or rehabilitation professional. 

Your medical file may contain any or all of the following:
  • any forms or certificates that led to your admission (for example, a schedule from a doctor and the Form 1 Medical Reports completed immediately following your admission);
  • a record of all previous medical notes that the hospital has (for example, discharge summaries from that or other hospitals);
  • notes on any interviews by doctors, social workers, occupational therapists, as well as daily notes from nurses;
  • a medication chart showing what treatments have been prescribed and given to you;
  • records of any tests/ assessments  (psychological, bio-medical, X-rays, CAT scans, etc).

Normally you or your lawyer also gets to see or be given a copy of the information about you that is given to the Mental Health Review Tribunal by the Authorised Medical Officer. You or your legal representative can ask to see and be given copies of other parts of your file.

You have a right to access this information but you may find that it takes a long time to get access to all the information on file about you while you are still a patient. Without a lawyer or an advocate to negotiate on your behalf, you may be told that the only way to get to see or get a copy of your file is through an Information Access request.  This is likely not to get you access in time for you to read before the mental health inquiry is held.

4H.1.5: Legal representation

The Mental Health Act 2007 (NSW) says that you can have a lawyer represent you at the Mental Health Inquiry. (You can, however, decide that you don't want anyone to represent you.) The right to have a lawyer represent you includes having the right to phone a lawyer if you wish. The lawyer is your advocate and will argue for what you want.

The Mental Health Review Tribunal also has the power to permit a person who is not a lawyer to represent you. 

The Mental Health Advocacy Service provides free legal representation in Mental Health Inquiries. Click here to read more about what the Mental Health Advocacy Service does . Click here for their publication 'Have you been involuntarily admitted to hospital?'

You can also choose to have your own private lawyer, for whom you would have to pay.

It is very important to tell your lawyer what you want said to the Mental Health Review Tribunal. If you want to be discharged from hospital you should tell your lawyer. You should explain any plans you have made for leaving hospital, such as:

  • plans to get treatment from a community health centre or a private doctor;
  • where you are going to live: if you don't have somewhere to live, then you could ask the social worker to help you find somewhere;
  • who could support you in the community: you could find out from your social worker about support services in your area such as drop-in-centres, living skills and community managed services including health centres and service 'hubs', that may be able to help you when you leave hospital;
  • what help you could get from family or friends or community services such as the Personal Helpers and Mentors Service: they can attend the hearing and tell the Tribunal how they can support you when you leave the hospital.

Well before the Mental Health Inquiry, you or your lawyer should talk to the hospital staff to make sure that you are not being given so much medication that you wouldn't be able to fully concentrate, follow what is happening and answer any questions at the inquiry.

For what happens at the Mental Health Inquiry, click here.

4H.1.6: What happens at a mental health inquiry?

The Mental Health Act 2007 (NSW) says that you are to be dressed in everyday clothes for the hearing, not pyjamas. You must only be given a minimal amount of medication so that you can take part in the Mental Health Inquiry and understand what is going on. As a courtesy patients should be given access to what they feel they need to present appropriately before the inquiry, such as shaving equipment and cosmetics. Usually, the Mental Health Inquiry goes for less than half an hour.

The following are likely to happen at the inquiry:

  • You will be taken to the room where the Mental Health Review Tribunal is holding the inquiry. A nurse, a social worker and a doctor are also likely to be there.
  • The Mental Health Review Tribunal member(s) may be actually in the room at the hospital or may be holding the inquiry using an audio-visual link. This means you will see them on a screen and be able to hear them. They will also be able to see and hear you.
  • The Tribunal will record all the evidence heard during the inquiry.
  • The Mental Health Review Tribunal will have access to copies of your documents of admission, treating team reports and progress notes. It may also have access to your hospital file if the hearing is being conducted in person at a Mental Health Facility.
  • Everybody will usually be called by their formal name, for example, Ms Smith, Dr Jones, Mr Lee. You may be asked whether you prefer to be addressed by your first name.
  • The doctor (and possible other hospital staff who are at the hearing) will tell the Mental Health Review Tribunal why they think you should stay in hospital as an involuntary patient.
  • The Mental Health Review Tribunal member(s) will ask questions about what the doctors and others have said or about other things that the Tribunal member(s) think are important to assist them in making the best decision.The Mental Health Review Tribunal member will ask you or your lawyer what you want. This is your chance to have a say about what is happening to you. (If you or your lawyer don't say anything, it is very likely the Tribunal will do what the doctor or hospital asks.)

At the end of the hearing the Mental Health Review Tribunal will make a decision about whether or not you are to stay in hospital as an involuntary patient, be discharged, or put on a Community Treatment Order.

For more about the decisions the Mental Health Review Tribunal can make, click here.

4H.1.7: Powers of the Mental Health Review Tribunal in a mental health inquiry

If, at the end of the mental health inquiry, the Mental Health Review Tribunal decides that you should stay in hospital for further observation and treatment, it will make an Involuntary Patient Order requiring you to remain in hospital as an involuntary patient for a period of up to three months, although often, the review date set will be shorter than 3 months. If your treating doctors believe that you need to stay in hospital beyond the end of the Order, they can apply for an extension of the Order from the Mental Health Review Tribunal.

If the Mental Health Review Tribunal decides that you can be cared for and treated while living in the community, it can order that you be discharged from hospital and put you on a Community Treatment Order for up to three months. 

Discharge: If the Mental Health Review Tribunal doesn't think that you are a mentally ill person under the definition in the Mental Health Act 2007 (NSW), it can order that you be discharged or released to the care of your primary carer. Your discharge can be put off for 14 days if the Tribunal thinks it is in your best interests.

An outcome of an Inquiry also could be that you agree to be a voluntary patient. If this occurs, technically, you would be discharged as an involuntary patient. However, the hospital can at any time start the process again to make you an involuntary patient.

Order to make you an Involuntary Patient: If the Mental Health Review Tribunal feels that you should stay in hospital to receive further observation and treatment because you have a mental illness as defined in the Mental Health Act 2007 (NSW), it will make an Involuntary Patient Order that will require you to stay in hospital for up to three months.

(It should be remembered that if the Mental Health Review Tribunal orders you to stay in hospital for up to 3 months, it does not mean that you cannot be discharged before the 3 months is up. Most people don’t stay in hospital on orders of the Mental Health Review Tribunal for over a month. Some involuntary patients also become voluntary patients after a relatively short time after an order by the Mental Health Review Tribunal).

Order that you be discharged into the care of your Designated Carer: Even if the Mental Health Review Tribunal thinks you are mentally ill under the definition in the Mental Health Act 2007 (NSW), it can discharge you into the care of your Designated Carer. (The meaning of 'Designated Carer' is precisely defined under the Mental Health Act 2007 (NSW)).

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. These changes are now in force.The Mental Health Act 2007 (NSW) has changed the term “Primary Carer” to that of “Designated Carer”. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.

Because of the ‘least restrictive alternative’ requirements found in the Mental Health Act 2007 (NSW), it is possible for the Mental Health Review Tribunal to discharge a person into a form of care other than hospital care, to whomsoever is providing that care. The Mental Health Review Tribunal is very unlikely to do this unless there is substantial current information available to them about that care and your prospects of recovery under that care.

Determine that you be placed on a Community Treatment Order (CTO): If the Mental Health Review Tribunal determines you are a mentally ill person under the definition in the Mental Health Act 2007 (NSW), rather than order a stay in hospital, it can place you on a Community Treatment Order .

Before it can make a Community Treatment Order, the Mental Health Review Tribunal must be satisfied that this is the least restrictive form of care reasonably available and consistent with your safe and effective care. It must also be satisfied there is a Community Treatment Plan proposed by a Community Mental Health Facility that is capable of being implemented.

If this hospital admission is not your first diagnosis of mental illness the Tribunal must also be satisfied of one of the following:
  • (if you have been a forensic patient or subject to a Community Treatment Order in the past 12 months) that there is a likelihood that you would continue in, or relapse into, an active phase of mental illness if the Order is not made; or
  • (if you have not been a forensic patient or subject to a Community Treatment Order at all, or not in the past 12 months) that you have a history of refusing to accept prescribed psychiatric treatment, which has led to a relapse of your mental health condition, warranting an admission to hospital.

4H.2: Mental Health Review Tribunal

4H.2.1: What is the Mental Health Review Tribunal?

The Mental Health Review Tribunal plays an important role in the care and treatment of people with a severe mental illness in NSW. The Tribunal has wide powers under the Mental Health Act 2007 (NSW) and is involved in making and reviewing orders about the treatment of people with a severe mental illness. It does this through holding hearings on a range of issues. There is more about the range of issues the Tribunal deals with below.

The Tribunal has a number of members, but when it holds hearings it is made up of either one person, who is a former judge or a lawyer; or three people: a lawyer, a psychiatrist and another person experienced and suitably qualified in mental health.The third member of the Tribunal may be for example: a psychologist, mental health nurse; social worker, medical doctor, mental health worker, consumer or carer advocate.

If you have to see the Tribunal more than once, there may be different members making up the Tribunal each time. The Tribunal holds hearings at Gladesville (or from Gladesville via video link to Mental Health facilities around NSW) and also travels to some hospitals and community health centres to hold hearings across NSW. Most hearings are now conducted by video-conference. You can ask for a face-to-face hearing if you would prefer this. However, this may not be available locally.

The following pages about the Mental Health Review Tribunal give information about:

4H.2.2: What matters do the Mental Health Review Tribunal deal with?

The Mental Health Review Tribunal deals with a wide range of matters, which include:

  • Mental Health Inquiries
  • The extension of Involuntary Patient Orders made at a Mental Health Inquiry
  • The further extension of Involuntary Patient Orders previously following the initial review conducted by the Tribunal
  • Appeals by an involuntary patient or their relatives for the patient’s discharge from hospital
  • Reviews of voluntary patients The making, changing and cancelling of Community Treatment Orders
  • Requests from the Authorised Medical Officer for permission to give electro-convulsive therapy to involuntary patients
  • Requests from the Authorised Medical Officer to determine whether or not a voluntary patient who is consenting to electro-convulsive therapy is able to give informed consent
  • Requests from the Authorised Medical Officer for permission for surgery (not psychosurgery) on involuntary patients who are not consenting to the surgery, or are unable to consent because they lack capacity
  • Requests from the Authorised Medical Officer for permission for surgery on voluntary patients who are incapable of giving consent to the operation

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. These changes are now in force.The Mental Health Act 2007 (NSW) has removed the power of the Mental Health Review Tribunal to authorise surgery for voluntary patients. In future such applications will be dealt with by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) under the Guardianship Act 1987 (NSW).

  • Requests from the Authorised Medical Officer for permission to conduct special medical procedures on involuntary patients (treatments that will result in the patient’s infertility)
  • Regular reviews of the cases of forensic patients
  • Making and cancelling of Financial Management Orders

4H.2.3: Mental Health Review Tribunal hearings

If the Mental Health Review Tribunal needs to hold a hearing about you, the hospital or community health centre will contact the Tribunal and organise the hearing. They will make sure you know when the hearing is being held.

Hearings, including mental health inquiries, are held in the hospital if you are an in-patient or at the local community health centre or some other convenient place if you are living in the community. If you are a patient in a country or regional area, the hearing may be conducted by video-conference.

You can also contact the Tribunal directly. For example, if you are living in the community and want to have a Financial Management Order cancelled or a Community Treatment Order changed or cancelled, you can contact the Tribunal directly to request a hearing about this, or you ask your case manager to do this for you.

Hearings of the Mental Health Review Tribunal are open to the public but are sometimes held in locations that make public access very difficult. The hearing will be recorded by the Tribunal.

Hearings, especially in regional or country areas, are often conducted by video or telephone conference.

You have a right to have an interpreter and you can have friends and relatives with you. You are to be dressed in street clothes.

At the hearing, the lawyer member of the Tribunal will lead the hearing (chair). They will start by introducing everyone in the room and explaining what the hearing is about.

Witnesses will include staff of the hospital and/or community health centre who have been involved with you. You and your lawyer and family members may also speak at the hearing.

If you find the hearing too stressful, you may ask the chairperson for a short break or for permission to leave.

The Tribunal has to tell you its decision as soon as it is made. The Tribunal has to give you a document of that decision in writing.

The Tribunal can make an order even if you are not at the hearing, as long as you have been given appropriate notice of the hearing.

4H.2.4: Legal representation at Mental Health Review Tribunal hearings

You have a right to have a lawyer to represent you at a hearing of the Mental Health Review Tribunal.

The Mental Health Advocacy Service provides free legal representation on many of the matters that the Tribunal deals with, but not all. Click here to find out more.

You have a right to get your own lawyer to represent you at the Tribunal hearing, but this will usually mean that you have to pay legal fees. Ask your lawyer beforehand what fees will be charged.

The Mental Health Review Tribunal also has the power to permit a person who is not a lawyer to represent you.

4H.3: Role of the Mental Health Review Tribunal and the decisions and orders it can make

The Mental Health Review Tribunal has power to:

  • extend Involuntary Patient Orders
  • end Involuntary Patient Orders, by discharging the patient
  • review Involuntary Patient Orders voluntary patients and forensic patients
  • make Community Treatment Orders and Financial Management Orders
  • make decisions about particular treatments such as electro-convulsive therapy

4H.3.1: Extending an order for involuntary detention

If you are subject to an Involuntary Patient Order, and the review date for that Order is approaching, the Authorised Medical Officer may want you to stay in hospital for a longer period. To do this, the Authorised Medical Officer must make an application to the Mental Health Review Tribunal to extend your Involuntary Patient Order. This application is similar to the original application for an Involuntary Patient Order made to the Tribunal at your Mental Health Inquiry. The Tribunal will be given all the relevant evidence and decide whether the order should be extended, or whether you should be discharged. 

4H.3.2: Appeals for discharge

If you are an involuntary patient, you may at any time ask the Authorised Medical Officer of the Mental Health Facility in which you are detained to discharge you. If this is refused, you may appeal to the Mental Health Review Tribunal against that refusal. The Tribunal will hold a hearing involving both the hospital and you (and/or your legal representative). The Tribunal will consider relevant information and make a decision either to discharge you or order that you stay you in hospital.

In making a decision on your appeal, the Tribunal will consider if you remain a mentally ill person as that term is defined in the Mental Health Act 2007 (NSW) and if there is any other care of a less restrictive kind that is consistent with your safe and effective care.

If the Tribunal dismisses your appeal, you remain an involuntary patient until discharged by the Authorised Medical Officer until the next review of your Involuntary Patient Order.

If you have requested the Authorised Medical Officer to discharge you and appealed to the Tribunal against their refusal to do on more than one occasion, the Tribunal may make an Order preventing you from making any further appeal until your Involuntary Patient Order is next reviewed.

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. These changes are now in force.The Mental Health Act (NSW) now gives the Tribunal the power, in dealing with an Appeal against a refusal to discharge, to discharge an involuntary patient, but defer that discharge by a period of up to 14 days.

4H.3.3: Involuntary Patient review

If you are an involuntary patient, the Mental Health Review Tribunal must see you and review aspects of your care and treatment at least every 3 months in the first year of your detention and thereafter every 6 months (although in special circumstances, after the first year of detention, reviews can be scheduled at intervals of up to 12 months.

In conducting this Review, the Tribunal will consider if you remain a mentally ill person as that term is defined in the Mental Health Act 2007 (NSW) and if there is any other care of a less restrictive kind that is consistent with your safe and effective care. If the Tribunal decides to discharge you following its review, it can defer your discharge by a period of up to 14 days.

4H.3.4: Voluntary patient review

If you are a voluntary patient and have been in hospital for more than 12 months, the Mental Health Review Tribunal will review your case and make sure that you are fully aware of and continue to consent to all aspects of your care and treatment. Such a review is to take place once every 12 months.

4H.3.5: Forensic patient review

If you are a forensic patient, the Mental Health Review Tribunal has to regularly review your case. You have a right to get free legal help from the Mental Health Advocacy Service for these reviews. Click here to read about the Mental Health Advocacy Service

4H.3.6: Community Treatment Orders

The Mental Health Review Tribunal can make an Order that requires you to accept mental health treatment in the community. This is likely to include regular follow-up and review by a Case Manager and Psychiatrist as well as an obligation to take or receive medication orally or by intramuscular injection. The community health care centre that has the duty to carry out the treatment (known as a declared mental health facility) has to present the Tribunal with a treatment plan that outlines what help they think you need and what help they are prepared to give. You may discuss all aspects of the case and of the treatment plan with the staff at the mental health facility and with the Tribunal.

If an order is made and your circumstances change, you may ask the Tribunal to change or cancel the order.

4H.3.7: Electro-convulsive therapy, emergency and other orders

If you are an involuntary patient and the hospital thinks you need electro-convulsive therapy, the Mental Health Review Tribunal must decide whether or not you should have it.

If you are an involuntary patient and the hospital thinks you need surgery but you are incapable of consenting to that treatment or refuse to consent to this treatment, the Tribunal may decide about whether or not you should have the surgery.

If you are a voluntary patient and have consented to have electro-convulsive therapy, the authorised medical officer can ask the Mental Health Review Tribunal to hold an inquiry into whether or not you are able to give informed consent. 

4H.3.8: Financial Management Orders

The Mental Health Review Tribunal has the power to make a Financial Management Order while you are an in-patient in hospital. This can be done at a Mental Health Inquiry or on an Application to the Tribunal while you remain an involuntary patient at some time after the Mental Health Inquiry. This means the NSW Trustee and Guardian will take care of your finances.

The Tribunal can also cancel Financial Management Orders. If you have such an order but think you are able to manage your own affairs, you should contact the NSW Trustee and Guardian and discuss it with them. The NSW Trustee and Guardian may give you control of you own financial and other matters. If the NSW Trustee and Guardian refuses to do so, you can contact the Mental Health Review Tribunal and ask them to consider your matter.

4H.4: Appeals against a decision of the Tribunal

You may appeal against any decision of the Mental Health Review Tribunal to the NSW Supreme Court. Appeals against the making of a Financial Management Order can be made to the NSW Civil and Administrative Tribunal (NCAT) or to the Supreme Court. An appeal to the Supreme Court can be expensive and you will need legal representation. If you lose the appeal you may also be ordered to pay the legal costs of the other party. The Mental Health Advocacy Service cannot represent you at the Supreme Court unless you qualify for a grant of legal aid from Legal Aid NSW. This involves a merit test for patients and a means and a merit test for people other than patients.

For more about where to get legal help, click here.

 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.