keyboard-shift-1
Chapters poster

Download your Mental Health Rights Manual poster here

print-text Print this section

Chapter 2 Section B: NSW laws, standards and guidelines

2B.1: NSW laws

There are several laws that may impact people with mental illness in NSW:

Mental Health Act 2007 (NSW) 

The Mental Health Act 2007 (NSW) deals with the care and treatment of persons with mental illness in NSW.

  • provides for the system of public mental health care, and provides for the licensing of private mental health facilities in NSW;
  • sets out the circumstances in which persons with mental illness may be admitted to and treated in mental health facilities in public hospitals on a voluntary or involuntary basis;
  • sets out the circumstances in which a person with a mental health illness may be subject to compulsory treatment provided by a public mental health facility in the community;
  • regulates some specific forms of mental health treatment, such as Electroconvulsive Therapy;
  • establishes the Mental Health Review Tribunal, which is a body that authorises and reviews the compulsory treatment of persons with mental illness in hospital and the community; and
  • establishes the roles of ‘official visitors’ who 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.

A Mental Health Act 2007 Guidebook (Sixth Edition) (April 2019 ) provides  clear and practical information about how the Mental Health Act 2007 (NSW) can be  applied. This Guidebook is for  mental health practitioners, as well as those who provide support and advice to persons with mental illness and carers.

  • CHAPTER 1 Aims and Objectives of the NSW Mental Health Act 2007
  • CHAPTER 2 Definitions
  • CHAPTER 3 Consumer Rights under the NSW Mental Health Act 2007
  • CHAPTER 4 Designated Carers and Principal Care Providers
  • CHAPTER 5 Voluntary Patients
  • CHAPTER 6 Involuntary Admissions
  • CHAPTER 7 Introduction to the processes of review
  • CHAPTER 8 Mental Health Inquiry
  • CHAPTER 9 Other Functions of the Mental Health Review Tribunal
  • CHAPTER 10 Community Treatment Orders
  • CHAPTER 11 Consent to Electroconvulsive Therapy
  • CHAPTER 12 Guardianship, Financial Management and the Mental Health Act
  • CHAPTER 13 Consent to Surgery or Special Medical Treatment
  • CHAPTER 14 Transport by Health Service Staff, Police, Ambulance Officers (Paramedics)
  • CHAPTER 15 Groups with Particular Needs under the Mental Health Act
  • APPENDIX 1 Amendments to The NSW Mental Health Act 2007
  • APPENDIX 2 Mental Health Act 2007 forms
  • APPENDIX 3 Mental Health Review Tribunal
  • APPENDIX 4 Facilities and services

This section of the Manual covers similar topics but focuses more specifically on describing the objectives of the Act as it refers to human rights.

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;
  • regulates the care, treatment, detention and release 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; and
  • provides for the recognition of victims of forensic patients, and provides a formal process for their views to be considered regarding leave or release of forensic patients. Click here to read about mental illness and the criminal justice system.

Privacy and Personal Information Protection Act 1998 (NSW)

The Privacy and Personal Information Protection Act 1998 (NSW) deals with the privacy of personal information.

The Act:

  • protects a person’s privacy rights in NSW by ensuring personal information is properly collected, stored, used or released by NSW public sector agencies according to the Information Protection Principles;
  • gives people the right to seek and ask for changes to be made to personal or health information;
  • allows a person to make a complaint to the NSW Privacy Commission if they believe a NSW public sector agency has misused their personal information or breached an Information Protection Principle;
  • provides for the development of privacy codes of practice and management plans for public sector agencies; and
  • establishes the position of Privacy Commissioner and sets out the Commissioner’s functions and powers.

Click here for more about confidentiality and privacy.

Health Records and Information Privacy Act 2002 (NSW) 

The Health Records and Information Privacy Act 2002 (NSW) deals with privacy of personal health information.

The Act:

  • protects a person’s privacy rights in NSW by ensuring their personal and health information is properly collected, stored, used or released according to the Health Privacy Principles;
  • gives people the right to see and ask for changes to be made to their personal or health information;
  • allows a person to make a complaint to the NSW Privacy Commissioner if they believe that a NSW public sector agency health organisation or health service provider has misused their personal or health information or breached one of the Health Privacy Principles; and
  • provides for the development of health privacy codes of practice by healthcare agencies.

Click here for more information.

Anti-Discrimination Act 1977 (NSW) 

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 and psychosocial disability), carer responsibilities, 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 claim 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.

Click here for more information.

The NSW Trustee and Guardian Act 2009 (NSW) establishes the NSW Trustee and Guardian (TAG), which has very broad functions. The TAG can act as trustee, executor or administrator, collector of estates, agent or attorney, guardian or receiver of the estate of a minor, and receiver of any other property.

The Act has some functions that are relevant to people with mental illness. For example, the Act:

  • provides TAG with the function of managing the financial and property 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 a person has died without a will;
  • provides TAG with the function of managing the financial and property affairs of persons where the Mental Health Review Tribunal or the Supreme Court of NSW has made a protective order for that person, 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.

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 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 by the Guardianship Division of NCAT;
  • provides the NCAT with the power to review 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 regular 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 click here.

Disability Inclusion Act 2014 (NSW)

The Disability Inclusion Act 2014 (NSW) contains general principles which align with the UN Convention of the Rights of Persons with Disabilities (CRPD). It acknowledges the human rights of all people with disability. The definition of disability in the Act reflects the language of [CJ1] the CRPD, which says 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 Act 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.

2B.2: NSW standards and guidelines

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 2017
  • 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 on where to get help; services and programs; mental health reforms; legislation and policies; resources and fact sheets and about recent reviews and consultations.

Please note:  a number of the policies listed are undergoing review, so please check the NSW Health website for the most up-to-date versions.

Updated October 21, 2019