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Chapter 4 Section E: 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 established 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:

4E.1: Mental Health Review Tribunal

4E.1.1: 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 mental illness in NSW. The Tribunal has wide powers under the Mental Health Act 2007 (NSW) in making and reviewing orders about the treatment of people with a mental illness. It does this through holding hearings on a range of issues, as discussed below.

The Tribunal is made up of many members. When it holds hearings, the Tribunal is normally represented by either one person, who is a former judge or a lawyer; or three people: a lawyer, who has the role of chairing the hearing, a psychiatrist and another person experienced and suitably qualified in mental health issues. For example, the third member of the Tribunal may be a psychologist, mental health nurse, social worker, medical doctor, mental health professional, peer 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 following pages about the Mental Health Review Tribunal give information about:

4E.1.2: 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;
  • Extension of Involuntary Patient Orders made at a Mental Health Inquiry;
  • Appeals by an involuntary patient or their relatives for the treating team’s refusal to discharge the patient;
  • Reviews of voluntary patients if they have stayed in a mental health facility for more than 12 months;
  • 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 Mental Health Review Tribunal cannot authorise surgery for voluntary patients. Such applications where necessary are 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 (for example, treatments that will result in the patient’s infertility); and
  • Making and cancelling of Financial Management Orders

The Mental Health Review Tribunal also has broad powers in relation to forensic patients. For more information, click here

4E.1.3: Mental Health Review Tribunal hearings

If the Mental Health Review Tribunal needs to hold a hearing about you, the hospital or community mental 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 inpatient. If you are living in the community, Inquiries are held at the local community mental health centre or some other convenient place. If you are a patient in a regional area, the hearing may be conducted by videoconference.

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. You can call the Tribunal on (02) 9816 5955.

Hearings of the Mental Health Review Tribunal are open to the public unless the Tribunal considers this is for example: unsafe. Hearings are all recorded by the Tribunal.
You have a right to have an interpreter and you can have friends and relatives with you. You are to be dressed in everyday clothes.

At the hearing, the lawyer member of the Tribunal will lead the hearing (they are called the ‘chair’). They will start by introducing themselves and inviting the other panel members to do likewise. They will then invite everyone else in the room or on the telephone to introduce themselves before explaining what the hearing is about.

Witnesses will include staff of the hospital and/or community health centre who have been involved in your care and treatment. You, 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 must tell you what its decision is, as soon as it is made. The Tribunal must give you a document of that decision in writing, but this may happen after the hearing, or over the next few days.

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 beforehand and the Tribunal was onsite at your facility to see you or via video-link.

4E.1.4: 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 right to have a lawyer represent you includes having the right to phone a lawyer if you wish. The lawyer will argue for what you want.

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

You can also choose to pay for your own private lawyer. Ask your lawyer beforehand what fees will be charged.

You can, also decide that you don’t want anyone to represent you and represent yourself.

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

4E.1.5: 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, Principal Care Provider, family members, or support person participating in the Inquiry require one. Staff at the public mental health facility will usually arrange this for you when they know you need one, but may not be aware of the language needs of your family or support persons, so is probably a good idea to let staff know as soon as you are given notice of a Mental Health Inquiry that an interpreter will be required and that one has been booked.

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

4E.2: The Mental Health Inquiry

The purpose of a Mental Health Inquiry is for the Mental Health Review Tribunal to decide if a person is a mentally ill person. The purpose should be clearly explained to consumers and their families. It is important that they understand that it is not a criminal proceeding but an opportunity for an independent person to hear from both the treating team and the consumer, and to determine whether the consumer is a mentally ill person as defined under the Act.

The Authorised Medical Officer of a public mental health facility where 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 within approximately two (2) or three (3) weeks after admission.

A Mental Health Inquiry may be conducted in person at the public mental health facility, or by videoconferencing from the Mental Health Review Tribunal’s Gladesville premises. Live hearings at public mental health facilities are usually held every two (2) 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 Designated Carer or Principal Care Provider.

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 lawyer will represent you and any other persons who have a Mental Health Inquiry that day. They are likely to visit you at the mental health facility to obtain your views to present at the Inquiry. This usually occurs the day before the Mental Health Inquiry is held or on the day of the Inquiry before the hearing. You can also be represented by a private solicitor at your own expense.

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/care-coordinator 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 room 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 Principal Care Provider is entitled to participate in the Mental Health Inquiry. Other people, such other family members, patient advocates, peer support workers and staff of non-government/ community managed organisations that support you in the community may also participate in the Inquiry.

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 Nguyen), but in some cases may use participants’ first names if they have checked that this is OK with the person.

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 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 actually be in the room at the hospital or may be holding the inquiry using videoconferencing. 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. The Tribunal will have access to its own files of past hearings and 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 be asked to 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 matters that the Tribunal member(s) think are relevant and important to assist them in making the best decision. The Mental Health Review Tribunal member will ask you or your lawyer what your views are, and what you would like to happen. This is your chance to have your say about what is happening to you. (It is quite appropriate for you to ask your lawyer to speak on your behalf). Even if you or your lawyer don’t say anything, the Tribunal will seek the evidence they need to meet the criteria under the Act for what they are being asked to do.

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

The Tribunal will review the documents of your admission (the Schedule 1 Medical Certificate, 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. If you have a Guardian appointed, they will also check whether your Guardian has been made aware of the hearing. The Tribunal Member 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 of 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 it has for the purpose of the hearing and confirm with your legal representative that they have had access to the same 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 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 person who is attending the hearing (or that the Treating Team are in touch with). You can choose to present your views through your solicitor, or speak directly to the Tribunal Member, 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, the panel will usually adjourn briefly to consider the evidence and their decision based on the application and the written and oral evidence before them.

At the end of the hearing the Tribunal presiding member ( the lawyer) will provide those attending the hearing with their decision about whether or not you are to stay in hospital as an involuntary patient, be discharged, or be put on a Community Treatment Order.

Mental Health Inquiries usually take about twenty (20) to thirty (30) minutes to complete, but they can take a great deal longer if there are complex issues to explore, there is an interpreter 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 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 respect and courtesy.

A Mental Health Inquiry can take place before a three-member panel of the Mental Health Review Tribunal if 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.

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.

4E.2.1: How long can I be kept in hospital?

If the Authorised Medical Officer of the a Mental Health Facility in which you are detained as an assessable person wants you to remain in hospital, they must apply to the Mental Health Review Tribunal for Involuntary Patient Order that will authorise your continued detention as an involuntary patient. The exact length of an Involuntary Patient Order will depend on your treating team’s opinion, for example, it may be two (2) weeks or six (6) weeks.

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 three (3) months.

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 the treating team form the opinion that you are no longer a mentally ill person, or that there is other less restrictive care 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 three (3) months during the first year of admission, and for six (6) months thereafter. A twelve (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.

4E.2.2: 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 can attend and participate in the inquiry.

If you decide you don’t want your relatives or friends to come to the Inquiry, you should tell the social worker or the nursing unit manager. However, whilst your view is taken into account, it is up to the Mental Health Review Tribunal to decide who will be allowed to give their views at the inquiry.

4E.2.3: Information on file

At the Mental Health Inquiry, the Mental Health Review Tribunal will have access to any reports specially prepared for the hearing. 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. The Tribunal will usually have access to copies of your medical progress notes for approximately the week leading up to the Inquiry.

Sometimes, the Tribunal will also have access to your medical file and it may contain any or all of the following:

  • Admission forms (for example, a Schedule 1 Medical Certificate from a doctor and the Form 1 document completed immediately following your admission);
  • a record of all previous medical notes (for example, discharge summaries);
  • notes on any interviews by doctors, social workers, occupational therapists, as well as progress notes from nurses;
  • a medication chart showing what treatments have been prescribed and given to you; and/or
  • records of any tests/assessments (psychological, neurological, cognitive, bio-medical, X-rays, CAT scans, etc).
  • copies of Guardianship Orders or Financial Management Orders
  • past Community Treatment Orders
  • notes from past mental Health Review Tribunal hearings and inquiries.

Normally 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. Your legal representative can ask to see and be given copies of other parts of your file.

You have a general right to access your health information. However, the doctor can warn your lawyer that it could be harmful to show you your health records while you are still an inpatient and your lawyer will need to consider this. 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 a request under the Government Information (Public Access) Act 2009 (NSW). This is likely not to get you access in time for you to read before the Mental Health Inquiry is held.

4E.2.4: 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 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 at Legal Aid NSW provides free legal representation in Mental Health Inquiries. 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 mental health centre or a private psychiatrist or psychologist
  • where you are going to live: if you don’t have somewhere to live, then you can ask the social worker to help you find accommodation and related supports in the home
  • who will support you in the community: you can find out from the 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’; peer support services
  • what support you are likely to get from family or friends; and
  • access to programs such as the Housing and Accommodation Support Initiative/CLS/ SIL or NDIS : if these supports are already in place you can ask them to attend the hearing and tell the Tribunal how they can support you when you leave the hospital.

Before the Mental Health Inquiry, you or your lawyer should talk to the hospital staff to make sure that you will not be given medication that you make it hard for you to fully concentrate, follow what is happening and answer any questions at the Mental Health Inquiry.

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

4E.2.5: Powers of the Mental Health Review Tribunal in a mental health inquiry

An Involuntary Patient Order: If the Mental Health Review Tribunal finds that you have a mental illness as defined in the Mental Health Act 2007 (NSW), there is risk of serious harm to yourself and to others, and that inpatient treatment is the least restrictive way to provide you with safe and effective treatment, it will make you an Involuntary Patient.

This Order will require you to stay in hospital for a period decided at the inquiry. If your treating doctors believe that you need to stay in hospital beyond the end of the Order, they can apply for another Order from the Mental Health Review Tribunal.

It should be remembered that if the Mental Health Review Tribunal orders you to stay in hospital for up to 4 weeks, it does not mean that you cannot be discharged before the 4 weeks is up. Some involuntary patients also become voluntary patients after a relatively short time after an order by the Mental Health Review Tribunal.

Order 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. Your discharge can be put off for fourteen (14) days if the Tribunal thinks it is in your best interests. This might be because certain arrangements still need to be completed such as securing suitable accommodation.

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 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.

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. 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 that is capable of being implemented by a Community Mental Health Facility.

If this hospital admission is not your first the Tribunal must also be satisfied of one of the following:

  • (if you have been 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 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.

4E.3: 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 at least five (5) days before the hearing.

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 also consider whether you are a mentally ill person for whom no other safe and effective care of a less restrictive kind is appropriate and reasonably available. The Tribunal will be given all the relevant evidence and decide whether the Order should be extended, or whether you should be discharged.

Where a further order is made, it must be reviewed:

  • at least every three (3) months during the first 12 months; and
  • at least every six months thereafter.

4E.4: 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 Tribunal has 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 fourteen (14) days.

4E.5: 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 three (3) months in the first year of your detention and thereafter every six (6) months. However, in special circumstances, after the first year of detention, reviews can be scheduled at intervals of up to twelve (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 fourteen (14) days.

4E.6: Voluntary patient review

If you are a voluntary patient and have been in hospital for more than twelve (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 twelve (12) months. This review will take place even if you have been an involuntary patient for some of that twelve (12) month period.

At the review, the Tribunal considers:

  • the care and treatment you are receiving;
  • whether you are likely to benefit from further care and treatment as a voluntary patient;
  • whether appropriate care is available outside a mental health facility; and
  • whether you consent to remain as a voluntary patient.

At this review the Tribunal may:

  • order your discharge;
  • order your discharge but defer the discharge for up to fourteen (14) days if it is in your best interest; or
  • decide to make no order, which means that your ongoing voluntary care and treatment continues.

4E.7: 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/Care-coordinator 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 your situation and 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.

To read more about Community Treatment Orders click here

4E.8: 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.

4E.9: Financial Management Orders

The Mental Health Review Tribunal has the power to make a Financial Management Order while you are an inpatient in hospital if they decide that the person is not capable of managing their affairs.

The Tribunal can make a Financial Management Order at a Mental Health Inquiry or on an application to the Tribunal while you remain an involuntary patient at some time after the Inquiry. This means the NSW Trustee and Guardian will take care of your finances.

The Tribunal can only appoint the NSW Trustee and Guardian as your financial manager, and not a private financial manager. If you prefer a private financial manager, you should let the Tribunal know that you would prefer for the application for a Financial Management Order to be considered by the NSW Civil and Administrative Tribunal. You can ask your lawyer to help you do this.

The Tribunal can also cancel existing Financial Management Orders. If you have such an order but think you are able to manage your own affairs or that cancelling the order is in your best interests, you should contact the NSW Trustee and Guardian and discuss it with them. You can contact them while you are an inpatient or after discharge.

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.

For more information about Financial Management Orders, click here

4E.10: Appeals against a decision of the Tribunal

You may appeal against any decision of the Mental Health Review Tribunal to the NSW Supreme Court. An appeal to the Supreme Court can be expensive and you will need legal representation. 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.

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.

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

Updated March 16, 2020