Chapter 4 Section A: Overview and objectives of the Mental Health Act 2007 (NSW)

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Chapter 4 Section A: Overview and objectives of the Mental Health Act 2007 (NSW)

The main purpose of the Mental Health Act 2007 (NSW) is to ensure the care and treatment of people in NSW who are ‘mentally ill’ or ‘mentally disordered’ (these terms have specific definitions under the Act).

The Objects of the Act set out its fundamental purposes and are an important guide to its interpretation.

Objects of Act
The objects of this Act are:

(a) to provide for the care and treatment, and promote the recoveryIndividual or personal recovery is defined as being able to create and live a meaningful and contributing life within a community of choice, with or without the presence of mental health difficulties. ‘Recovery’ can mean different things to different people; but in general, it means: gaining and retaining hope; understanding of one’s abilities and difficulties; engagement in an active life; personal autonomy; social identity; meaning and purpose in life, and a positive sense of self. More, of persons who are mentally ill or mentally disordered; and
(b) to facilitate the care and treatment of those persons through community facilities; and
(c) to facilitate the provision of hospital care for persons on a voluntary basis where appropriate and, in limited situations, on an involuntary basis; and
(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care, and, where necessary, to provide for treatment for their own protection or the protection of others; and
(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

The Mental Health Act 2007 (NSW) also includes, Principles for care and treatment to be applied in the care and treatment of people with a mental illness or mental disorder. These Principles are of fundamental importance to understanding of the purposes of the Act and are also an important guide to its interpretation.

To read the Principles follow this link

This section provides a brief overview of key aspects of the Mental Health Act 2007 (NSW) providing information on:

Concept of recovery
Main rights under the Mental Health Act 2007 (NSW)
The principle of least restrictive care

The rest of this part gives more detailed information about mental health law in NSW, covering the following topics:

4A.1: The concept of recoveryIndividual or personal recovery is defined as being able to create and live a meaningful and contributing life within a community of choice, with or without the presence of mental health difficulties. ‘Recovery’ can mean different things to different people; but in general, it means: gaining and retaining hope; understanding of one’s abilities and difficulties; engagement in an active life; personal autonomy; social identity; meaning and purpose in life, and a positive sense of self. More in the Mental Health Act 2007 (NSW)

The Mental Health Act 2007 (NSW) states the primary objective of the Act to be ‘to provide for the care and treatment of, and to promote the recoveryIndividual or personal recovery is defined as being able to create and live a meaningful and contributing life within a community of choice, with or without the presence of mental health difficulties. ‘Recovery’ can mean different things to different people; but in general, it means: gaining and retaining hope; understanding of one’s abilities and difficulties; engagement in an active life; personal autonomy; social identity; meaning and purpose in life, and a positive sense of self. More of, persons who are mentally ill or mentally disordered’. The concept of recoveryIndividual or personal recovery is defined as being able to create and live a meaningful and contributing life within a community of choice, with or without the presence of mental health difficulties. ‘Recovery’ can mean different things to different people; but in general, it means: gaining and retaining hope; understanding of one’s abilities and difficulties; engagement in an active life; personal autonomy; social identity; meaning and purpose in life, and a positive sense of self. More reflects the parliament’s intention to give greater weight to the views of consumers when decisions are being made about their care and treatment under the Act. However, the Act also addresses when and how a person with a mental illness can be compulsorily cared for and treated in NSW; that is, when authorities can suspend some, but not all, of the rights that people have in relation to their healthcare for their benefit.

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

taken to a public mental health facility against your will for further assessment;
treated in hospital without you agreeing to this;
stopped from leaving a hospital that you’ve been taken to, including being kept behind locked doors and forcibly taken back to hospital if you leave;
placed on a Community Treatment OrderA Community Treatment Order is a legal order made by the Mental Health Review Tribunal, or in some circumstances, a Magistrate. It authorises the compulsory care and treatment, usually including the regular administration of medication, of a person with mental illness living in the community. The order is implemented by a public community mental health service, often in collaboration with a range of community managed organisations providing psychosocial care and support services. More when you are not in hospital care, which requires you to have regular treatment, including medication.

This does not mean:

your views will not be considered;
you can be treated with sub-standard care or treated in a way by health care professionals or other hospital staff that does not meet ethical, professional and competency standards and NSW Health’s published standards;
you lose all your rights when you are in hospital; or
your needs related to your age, gender, religion, culture, language or other disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More can be ignored.

4A.2: Main rights under the Mental Health Act 2007 (NSW)

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

be given a Statement of Rights as soon as practicable after your admission;
given information about treatment, treatment alternatives and the possible effects of treatment;
be involved in the development of your treatment plan and any plans for your ongoing care; and
told your legal rights under the Act in a language that you can understand.

The Mental Health Act 2007 (NSW) does not give you a right to be admitted to a mental health facility or to extend your stay if the treating doctors don’t think it is clinically appropriate or necessary. You can, in this situation, ask for a review by the ‘Authorised Medical Officer’ or the Medical Superintendent of the hospital where you want to be admitted by completing an ‘Application to medical superintendent for review of decision of authorised medical officer’. Click here to download the form. The Mental Health Act 2007 (NSW) does not say that you have to put your request in writing, but it is better, if you can, to do so.

The decision to refuse to admit you can be reviewed by the Health Care Complaints Commission as it may raise a question of whether a hospital or a doctor has treated you with the appropriate standard of care. This could also be considered by a court as a result of you taking legal action.

A person detained in a public mental health facility must be provided with a Statement of Rights as soon as practicable following their admission. This Statement of Rights sets out in question and answer form the rights and responsibilities of detained persons and medical personnel involved in their treatment under the Mental Health Act 2007 (NSW). This Statement of Rights is set out in Schedule 3 of the Mental Health Act 2007 (NSW). You can access a copy of this Statement of Rights by following this link.

4A.2.1: The principle of least restrictive care

A key principle under the Mental Health Act 2007 (NSW) is that mentally ill and mentally disordered people should receive the care and treatment they require in the ‘least restrictive environment consistent with their safe and effective care’. Mental health facilities in NSW are required to provide care and treatment in accordance with this principle.

Both aspects of the principle (‘least restrictive environment’ and ‘consistent with safe and effective care’) are important and must be balanced. For example, if a person can recover from the onset or a relapse of a mental health conditionThe term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. This condition can be temporary, episodic or lifelong. A mental health condition can include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to, those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW). More with care and treatment at home with family support, they should not to be admitted to hospital. On the other hand, if a person refuses treatment and it would be unsafe or ineffective for a person to recover from the onset or relapse of a mental illness at home, and they are a risk of harm to themselves or others, an involuntary admission to hospital may be the least restrictive alternative.

The principle of the least restrictive option is an important test for the type of mental health interventions authorised under the Mental Health Act 2007 (NSW). Application of this principle, includes considerations of practical factors such as whether the person has a regular psychiatrist in the community, side effects of particular medications, whether appointments with a community health centre will impact work commitments, etc. Therefore, any form of less restrictive care proposed must also be ‘reasonably available’

Updated March 13, 2020