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 recovery, 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.
This section provides a brief overview of key aspects of the Mental Health Act 2007 (NSW) providing information on:
The rest of this part gives more detailed information about mental health law in NSW, covering the following topics:
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 recovery of, persons who are mentally ill or mentally disordered’. The concept of recovery 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:
This does not mean:
If you are being dealt with under the Mental Health Act 2007 (NSW), you have a right to be:
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.
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 condition 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