Chapters poster

Download your Mental Health Rights Manual poster here

print-text Print this section

Chapter 4 Section K: Complaints and advocacy services for involuntary patients

This section outlines where you can go if you have any concerns about being an involuntary patient or about the care and treatment you receive as a voluntary or involuntary patient.

If you are an involuntary patient and want to have your involuntary status reviewed, you should contact the Authorised Medical Officer of the hospital where you are being treated and ask them to discharge you. To find out more about this, click here.

If you want legal advice about being an involuntary patient or want a lawyer to represent you at a Mental Health Inquiry held by the Mental Health Review Tribunal or at another type of hearing of the full Mental Health Review Tribunal, you can contact the Mental Health Advocacy Service.

If you have concerns about the quality of your care in hospital, you can contact the Health Care Complaints Commission.

If you have concerns about any issue to do with your treatment and care (except legal issues about your involuntary status) you could contact a Consumer  Advocate or Peer Worker within the hospital.

If you have particular concerns about your care and treatment as an involuntary patient or the physical state of the hospital or unit where you are being treated, you can contact the Official Visitor.

4K.1: The Authorised Medical Officer

If you are an assessable person or an involuntary patient and want to be discharged, at any time you can ask to speak to the Authorised Medical Officer , or the person delegated by the Medical Superintendent to be the ‘Authorised Medical Officer’, to discharge you.

You could either argue that you are no longer ‘mentally ill’ person under the definition in the Mental Health Act 2007 (NSW) or that you could be treated in a less restrictive setting, such as in a private hospital, while living and being cared for by family or friends, through receiving community care and/or private psychological treatment.

The Authorised Medical Officer has the power to discharge you at any time if they believe you are no longer mentally ill, or that there is other care of a less restrictive kind, consistent with your safe and effective care, reasonably available to you. Despite an order made by the Mental Health Review Tribunal, an involuntary patient can be discharged at any time by hospital medical staff or be made a voluntary patient. The Mental Health Act 2007 (NSW) says that one of these things must happen if you no longer meet the definition of mentally ill or mentally disordered under the Act. Many people don’t remain as involuntary patients for the full length of time set out in the order made by the Mental Health Review Tribunal at the mental health inquiry.

There is an application form to ask for a review of your involuntary status. You can ask any member of the hospital staff for the form. When you have completed the form, ask a staff member to give it to the Authorised Medical Officer. The form for this is called ‘Application by a Patient for Discharge from Hospital’, click here to download the form.

However, there is nothing in the Mental Health Act 2007 (NSW) that stops you from approaching the Authorised Medical Officer directly and putting your case to him or her verbally. If you want to do this and find that you are not able or allowed to make contact, you could ask a member of your family or a friend to do so. Alternatively, you could approach a legal service or an advocacy service and tell them of your attempts to contact the Authorised Medical Officer.

If the Authorised Medical Officer decides to discharge you, they can delay discharge for up to fourteen (14) days if they believe it is in your best interests.

If the Authorised Medical Officer rejects your application to be discharged, or does not respond to your request for discharge within three (3) days, you can appeal to the Mental Health Review Tribunal. The Mental Health Advocacy Service in Legal Aid NSW provides free representation at hearings of these appeals before the Mental Health Review Tribunal.

The Medical Superintendent of a hospital can and should, like the administrator of any public health facility, receive and deal with complaints and concerns about the general standard of care you receive in hospital. It is always best to, if possible, to put such complaints or concerns in writing and keep a copy.

4K.2: Mental Health Advocacy Service

The Mental Health Advocacy Service is part of Legal Aid NSW. The solicitors from the Mental Health Advocacy Service ensure that your views are heard by the Tribunal. They will act on your instructions, and check that the procedures and rights set out in the Act have been followed. This is a free service.

The Service provides free telephone advice on all aspects of mental health law. The Service can be contacted on (02) 9745 4277 during business hours.

The Service provides free legal representation in hearings before the Tribunal in these circumstances:

  • mental health inquiries after hospital admission
  • reviews of involuntary patient orders during the first twelve (12) months
  • applications for a financial management order under the Trustee and Guardian Act 2009 (NSW)
  • reviews where you have been detained after a breach of a Community Treatment Order
  • applications for a Community Treatment Order, if you are detained in a mental health facility and you have specifically asked for representation for the hearing
  • applications for Electroconvulsive Therapy
  • all hearings where the consumer is under 16 years of age; and
  • all hearings before the Tribunal concerning forensic patients.

There are some circumstances where the Mental Health Advocacy Service will consider whether you can afford to pay for a lawyer (‘means test’) or whether you have a very strong case (‘merit test’) before helping you. These are the circumstances:

  • appeals against an Authorised Medical Officer’s refusal to discharge
  • appeals to the Tribunal or Supreme Court including against detention or a Community Treatment Order
  • applications for first time Community Treatment Orders if you are in the community
  • applications for renewals of a Community Treatment Orders if you live in the community; and
  • applications to revoke a Financial Management Order.

The Mental Health Advocacy Service does not generally represent consumers in the following matters:

  • reviews of voluntary patient orders; and
  • ongoing reviews of Involuntary Patient Orders after the first twelve (12) months of detention.

The Mental Health Advocacy Service also provides representation on request to people who are the subject of applications before the Guardianship Division of the NSW Civil and Administrative Tribunal. The Tribunal must first either agree for the person to have a lawyer (‘grant leave’) or the Tribunal can ask for a lawyer to act as a ‘separate representative’.

For further details and advice about representation contact the Mental Health Advocacy Service (02) 9745 4277.

4K.3: Consumer  Advocates and Peer Workers at hospitals

Many hospitals have Consumer Advocates and Peer Workers. They are people with lived experience as patients ( or carers of patients)  in the mental health system. They are employed by the Area Health Services to provide support and advice to patients and their carers and relatives.
Consumer Advocates and Peer Workers:

  • offer you understanding and support
  • make sure the health service listens, understands and respond to you
  • help you to get the information you need
  • help you if you are finding it hard to access the right local support services
  • support you to understand your rights and responsibilities, and the responsibilities of the health service
  • provide support at Mental Health Review Tribunals upon request
  • give you information about avenues for making complaints; and
  • advocate for you in some hospitals.

Consumer Advocates and Peer Workers are unlikely to be able to resolve issues such as discharge, or major concerns about the standard of patient care that challenge decisions of medical staff.

If you do not know who the Consumer Advocate or Peer Worker is in the hospital, ask the nurse unit manager or the social worker.

Updated March 20, 2020