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Chapter 8 Section E: Children and young people with mental health conditions

Children and young people can experience mental health conditions, but they may not always know where to seek help or feel like they can seek help. Because young people and children have less life experience and different needs as compared to adults, there are specific safeguards in place to make sure that their rights are respected and their needs are met.

Under the law, a child in NSW is generally a person under the age of eighteen (18). Sometimes, for example under the Children and Young Persons (Care and Protection) Act 1998 (NSW), a child is specifically defined as a person under sixteen (16), and a young person is defined as someone aged sixteen (16) or seventeen (17).

This section gives an overview of the following aspects of the rights and safeguards for children and young people receiving mental health care in NSW:

8E.1: The rights of children and young people and medical treatment

Australia is a party to the UN Convention on the Rights of the Child, an international agreement between countries to observe common standards for protecting the rights of children. These rights have not become part of Australian domestic law, so they cannot be enforced through our courts or tribunals. However, these rights are still important when discussing whether Australian laws and practices meet international standards.

The National Mental Health Statement of Rights and Responsibilities states that child and young people have the right to the following:

  • mental health services that respond appropriately to the needs of children and young people, including by recognising the potential vulnerability of children of mental health consumers;
  • services that conform with the United Nations Convention on the Rights of the Child, including by ensuring that the best interests of the child are the primary concern in decisions involving children;
  • acknowledgement that the families, carers and the support persons of children and young people play an important role in the health and mental health care of children and young people. The families, guardians, carers and support persons of children and young people have the right to:
    1. be confident that the child or young person will receive the most appropriate assessment, individualised care planning and treatment, taking into account the child or young person’s age, any special circumstances, and the presentation and nature of their health or mental health problems or mental illnesses;
    2. be informed about the child or young person’s diagnosis, treatment options and management plans for ongoing care;
    3. participate in decisions about the child or young person’s care in accordance with the age, maturity and needs of the child or young person;
    4. receive the support they need to make health decisions and to participate appropriately in the decision-making process; and
    5. receive independent support and advice;
  • make decisions for themselves (if they are capable of doing so) subject to any relevant legislation;
  • a child or young person should never be denied assessment, individualised care planning, support, care, treatment, rehabilitation or recovery services on the grounds that a family member, guardian, carer or support person has refused to participate in a specific treatment approach;
  • children and young people admitted to a mental health facility have the right to:
    1. continue to benefit from the involvement and support of their families, guardians, carers and support persons;
    2. access to an independent advocate whose role is to protect the child or young person’s rights;
    3. benefit from other special protections and safeguards as determined by legislation and policy;
    4. be separated from adult patients and provided with accommodation and programs appropriate to their age and development;
  • to expect that their family, guardian, carer and support persons will obtain appropriate professional assistance if they have reason to believe that the child or young person has a mental health problem or mental illness; and
  • Families, guardians, carers and support persons of children and young people have a right to be provided with information necessary for their support role. They should expect to be involved to an appropriate extent consistent with relevant privacy and guardianship legislation in decisions about assessment, individualised care planning, support, treatment, rehabilitation and recovery services.

You can find the Mental Health Statement of Rights and Responsibilities by following this link.

E.2: Treatment in the community for children and young people with mental health conditions

There are a few places you can go if you are a young person and are worried you might have a mental health condition, and want to get information and/or help:

Your local General Practitioner: the best place to start is usually your local General Practitioner, who can make an assessment regarding your mental health and refer you to an appropriate specialist or service. To find out more about your rights when you go to see your General Practitioner, click here.

Mental health services at school: check whether your school has a school counselling service.

Community health services and hospital clinics: some community health services and public hospital clinics have health care professionals who specialise in the mental health of children and young people.

Child and adolescent psychiatrist: these are psychiatrists who specialise in children, adolescents and families. You may need a referral from a General Practitioner to see a child and adolescent psychiatrist. They can assess you and prescribe and monitor medication and refer you to other specialists such as a psychologist, occupational therapist or other allied health practitioner.

If your mental health condition becomes worse, there are a number of mental health facilities that admit children and adolescents. Some of these facilities provide accommodation and access to education during the admission. Admission to these facilities is often based on referral by health practitioners or other qualified professionals.

The Health Direct website has some information on supporting children experiencing mental health issues and where you might go for support. To read more, click here.

If you’d like to find out more, or talk to someone, here are some organisations that can help:

  • Kids Helpline: 1800 55 1800. This is free and confidential telephone and online counselling for young people aged 5-25 for any reason.
  • headspace: provides early intervention mental health services to young people aged 12–25, provided by qualified youth mental health professionals. Headspace has an online and telephone service to support children and their families called e-Headspace. Support is also available to concerned parents or carers. headspace Early Psychosis offers expert support for young people who are experiencing an early episode of psychosis or are at risk of developing psychosis.
  • Lifeline: 13 11 14. This is a 24/7 free, confidential crisis telephone counselling, information and referral service, provided by trained volunteers who are supported by professional staff.
  • SANE Australia: people living with a mental illness and their carers can call 1800 187 263*.
  • ReachOut.com: a youth mental health service, including an online forum.
  • Youth BeyondBlue: 1300 224 636*. This service provides information and confidential telephone and online counselling for young people aged 12–25 years old, who may be experiencing anxiety, depression or suicidal ideation.
  • eSafety Commissioner: provides helpful information about being safe online and mental health, including cyberbullying, too much time online and trolling.
  • Emerging Minds: provides useful information regarding child mental health. It does not provide direct services to children or young people experiencing mental health issues.

You can call the Mental Health Line on 1800 011 511* or the Mental Health Information Service on 1300 224 636 * for more information about accessing the appropriate mental health services in your area.

For information about alcohol and drug services that work specifically with young people, click here.

*Mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

8E.3: Treatment in public mental health facilities

The law that regulates the care and treatment of adults living with mental health conditions also applies to children and young people. This is the Mental Health Act 2007 (NSW).

There are no laws that deal specifically with the care and treatment of a young person with mental illness, but there are a number of sections of the Mental Health Act 2007 (NSW) that set out the process for admission of children and young people to hospital. Click here to find out more about whether or not you, as a young person, can admit yourself to a mental health facility.

Medical examinations and medical treatment of a young person must be legally authorised. This means that valid consent must be given to the doctor or health care professional before an examination is conducted or treatment is provided. If valid consent is not given, then the examination or treatment is an assault.

NSW Health has a Policy Directive governing the provision of mental health services to children and adolescents in public mental health facilities. This Policy notes that decisions about the type of and urgency of admission to a public mental health facility should consider a child or young person’s age, severity and complexity of their condition, the degree of risk to them, availability of services and the capacity of the family or other carers to use them.

All local community care options should be considered before admitting a child or young person to a public mental health facility. The child or young person in need of treatment and family should also be provided with support in preparation for the transfer to the hospital.

Treatment at a public mental health facility should be the least restrictive option, and must consider the safety of the child or young person and that of others. The public mental health facility closest to the child or young person’s home should be chosen. The child or young person should be supported wherever possible, especially for younger children and Aboriginal families. The child or young person should be provided with the most appropriate care for them based on their age, treatment needs and the resources of the hospital.

The Policy Directive applies to admission to Specialist Child and Adolescent Mental Health units, Paediatric hospitals and Paediatric wards in general hospitals, Adult Acute Mental Health wards and Psychiatric Emergency Care Centres.

You can find a copy of this Policy Directive by following this link.

Click the following links to find out more about:

8E.3.1: What is a valid consent?

Valid consent is when you voluntarily agree to have a treatment when you understand what the treatment involves. A provider of health care must take reasonable steps to make sure that you, as a patient, understand key benefits, limitations and potential risks and side effects of any treatment they suggest before asking you to agree to the treatment. If you agree to the treatment once you have been given the information and understand what you have been told, it is called ‘informed consent’ to treatment. Informed consent by a person who has capacity is a valid consent.

8E.3.2: How old do you have to be before you can consent to treatment?

Under the law, a young person is capable of giving informed consent for medical or dental treatment, without parental consent, if that person is mature enough to understand the nature and consequences of the treatment.

Health professionals must decide whether a young person has the capacity to consent depending on the circumstances of that young person. The following principles are largely accepted by health care professionals in NSW about who can give consent to your medical treatment:

  • If you are sixteen (16) or older, you can consent to medical examination and treatment if you understand what the treatment involves.
  • If you are under sixteen (16), your parent or guardian generally needs to consent. Sometimes, depending on the treatment, if you are aged fourteen (14) or older, the health care professional may consider that you have the ‘capacity’ to consent if you are enough to understand the information you have been given about the treatment and what it involves.
  • if you are under fourteen (14) years old, the consent of your parents or guardians to medical treatment is normally needed.

Sometimes, even when you are older than sixteen (16), if the health professional believes strongly that you don’t have the capacity to give informed consent, the medical professional may ask your parent to consent on your behalf. If you don’t have a parent to consent on your behalf, then the health care professional may need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to get substitute consent for anything more than minor treatment.

The Guardianship Division of NCAT can give consent to medical treatment on behalf of a person who is over sixteen (16) and unable to make an informed decision, usually because of illness or disability. Click here for more information on the Guardianship Division and its role.

If you require “special medical treatment”, it can generally only be carried out on a child under sixteen (16) with the consent of the Guardianship Division of NCAT, or if a medical practitioner has the view the treatment is urgently necessary to save the child’s life or prevent serious damage to the child’s health. NCAT can only give consent to special treatment of a child if it is satisfied that the treatment is necessary in order to save the child’s life or to prevent serious damage to the child’s psychological or physical health.

Medical or dental treatment provided without proper, informed consent may be an assault the law.

8E.3.3: Consent in an emergency

In an emergency, health care professionals can treat you without consent from you or your parent or guardian if you are aged under 16 and they believe it is necessary to treat you to save your life or prevent serious damage to your health.

8E.3.4: Can a young person admit him or herself to a mental health facility?

As a young person, you can generally be admitted as involuntary patients in the same way as adults. However, it may be possible in some cases for you to be provided with the care and treatment you need through a voluntary admission with the consent and cooperation of your parent(s).

If you are over sixteen (16) – you can admit yourself into a mental health facility as a voluntary patient and it is up to you whether your parent(s) are told you have been admitted.

If your parent objects to you being in a mental health facility and you are fourteen (14) or fifteen (15) years old – you can still stay at the facility if you want to stay.

If you are younger than fourteen (14) – your parent can admit you as a voluntary patient. You can also admit yourself to a mental health facility, but a medical officer at the facility must make every effort to let your parent know of your admission.

If your parent objects to you being in a mental health facility and you are under fourteen (14) years old – you must be discharged if and when your parent or guardian asks that you be discharged.

There are different rules and considerations if you are an involuntary patient under the Mental Health Act 2007 (NSW) and you have nominated a Designated Carer under that Act.

8E.3.5: Treatment as an involuntary patient

A designated carer is nominated by you and in most cases identified by treating clinicians as the person who should be consulted about your care and treatment. Your designated carer will be informed about any related matters such as hearings, medication, discharge and progress. You can nominate up to two (2) designated carers.

If you do not choose a designated carer, a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition can be considered your designated carer. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture.

The designated carer of a child (i.e. under 18 years of age) is generally the parent. Where the child is over the age of fourteen (14) they may nominate someone other than a parent as their designated carer. However, where the child is between the ages of fourteen (14) and eighteen (18) years of age, the Act states that a parent may not be excluded from receiving notice or information about the child.

Click here to find more information about Designated Carers and the Mental Health Act 2007 (NSW).

If you are under Guardianship, your Guardian is your Designated Carer. A Guardian is a legally appointed person who can make decisions on your behalf. If you have a Guardian, only your Guardian can consent to medical treatment on your behalf.

For more about the Guardianship hearing process, click here.

8E.3.6: Rights of young people under the Mental Health Act 2007

In general, children and young people have the same rights as adults under the Mental Health Act 2007. For example, a Statement of Rights should be given to the children or young person as soon as possible after they have been detained in a public mental health facility. Click here to find out more about what these rights are.

To make sure that the child or young person has the assistance they need to understand and exercise their rights, the Mental Health Act 2007 requires young people under sixteen (16) years of age to be legally represented in all matters before the Mental Health Review Tribunal. The child or young person can also be represented by another person of their choice with the approval of the Mental Health Review Tribunal. The Tribunal has the power to decide that it is in their best interests to proceed without such representation.

For more information about the Mental Health Review Tribunal, click here.

8E.3.7: Electro convulsive treatment

Electroconvulsive Therapy (ECT) is a safe and effective treatment for people with severe major depressive disorder and some other mental illnesses.

ECT for those under sixteen (16) years of age: Where an application is made for ECT for a young person under the age of sixteen (16) years, one of the two medical certificates required must be completed by a psychiatrist with expertise in the treatment of children and adolescents. The Tribunal must also give its consent to the treatment regardless of whether the young person is a voluntary or involuntary patient, and regardless of whether or not they are able to give informed consent.

8E.4: Young people at risk of self-harm

Self-harm is a problem for many young people and it is often linked to the young person’s mental health. While there are many different reasons why a person may self-harm, and different people may give it a different name, self-harm is basically an action that someone takes to deliberately hurt him or herself without necessarily wanting to kill themselves.

Despite the usual confidentiality rules, if, for example, a General Practitioner or a social worker or another person in authority thinks you are a young person at risk of serious harm, they must report this to the NSW Department of Communities and Justice (DCJ). The DCJ may consider that you are at risk of harm in these circumstances.

This reporting requirement applies to any person working in children’s services, health care, welfare services, education, residential services and law enforcement.

If you are under sixteen (16): You are considered a child under the Children and Young Persons (Care and Protection) Act 1998 (NSW). A worker from any of the services listed above must report concerns about your safety and wellbeing if they have reasonable grounds to believe that you are at risk of harm. If you are injecting drugs, you are also considered to be at serious risk of serious harm.

You are sixteen (16) or seventeen (17): You are considered a young person under the Children and Young Persons (Care and Protection) Act 1998 (NSW). A worker with reasonable concerns that you are at risk of serious harm may decide to report it, but they should involve you in making that decision, unless if there are good reasons for excluding you. If you do not want the report to be made, the worker may still report it, but they must tell the Department of Communities and Justice of your wishes, and consider your wishes when deciding how to respond to the report.

To find out what happens when a report has been made about a young person, click here.

If you are harming yourself or you know another young person who might be, there are many resources for you to find out how to prevent or stop self-harm, and how to support someone to stop harming themselves. For a list of mental health services that can support you and for information about self-harm, click here.

8E.5: Confidentiality of health information

Young people have a right to confidentiality with respect to their medical records. Where a young person has given consent to treatment, the young person’s parents must not be informed without the young person’s consent if they are not the designated carer. Where a parent has consented to treatment on behalf of the child or young person, the health professional must keep information to the parent confidential and the child or young person has no independent right to confidentiality.

The Health Records and Information Privacy Act 2002 (NSW) applies to everyone no matter what their age. This means a child or young person has a right to access their health records, a right to request that the records be corrected if inaccurate, and a right to ask for their health information not to be shared with other health providers or third parties.

My Health Record is an online summary of a person’s key health information managed by the Commonwealth Government. It includes details of the person’s medical conditions and treatments, medicine details, allergies, and test or scan results. Young people fourteen (14) and older, parents do not have access to their My Health Record unless the young person invites them to be a ‘nominated representative’.

Parents or guardians manage the health records of children under the age of fourteen (14). Young people over fourteen (14) can remove medical documents at any time or set privacy controls to restrict who can see their records. For more information about My Health Record, click here.

There are some exceptions to the confidentiality of your health information as a child or young person. In a medical emergency, doctors can access important health information when time is critical, such as allergies, medicines and immunisations, to assist in determining treatment and care.

8E.5.1: What happens if a report is made about me as a child or young person?

The NSW Department of Communities and Justice (DCJ) must respond if someone reports that they think you are at risk of significant (serious) harm.

If they get a report that you may be at risk of significant harm, the DCJ will investigate the matter to work out if you really are at risk of significant harm. DCJ may contact your parent or carer, your teacher, your doctor, and other people who you may be close to in order to find out more about the situation you are in. DCJ must involve you in its decision-making process as much as possible.

If DCJ decides that you are not at risk of serious harm, they may close their investigation.

If DCJ decides you are at risk of serious harm, they will take action to protect you from further harm. The actions that DCJ take will depend on its assessment of your risk of serious harm. For example, they may provide practical help to your family such as organising childcare, counselling or referral to health or other services; and may work with your family to develop a care plan. In some cases, it may apply to the Children’s Court for orders about your care and protection.

For more information about how DCJ may respond to a report of suspected risk of serious harm, click here.

8E.5.2: Young people and Medicare

Medicare is designed to provide universal health care for Australians. Universal health care means that those people who are eligible for Medicare can always access health care that is free or provided at a low cost.

Young people do not need their own Medicare card to access a health service. Without a Medicare card however, the young person will have to pay the full price of the service.

Young people aged fifteen (15) or older can have their own Medicare card, without their parents’ consent. Young people under fifteen (15) can apply with their parents’ consent.

Where the young person is still on the family’s Medicare card, the health professional may accept the Medicare number without physically seeing the card.

Where a young person has their own Medicare card, the young person needs to give consent before their parents and guardians can access Medicare record information. If the young person is still on their family’s Medicare card and aged fourteen (14) or fifteen (15), generally their consent is required before information about Medicare records is released to parents or guardians. Once a child is sixteen (16), Medicare can only give information to parents or guardians with the young person’s consent.

8E.6: Right to legal representation

As a child or young person you may need legal representation. Legal representation means having your interests represented by a lawyer. If you are not sure whether an issue you have is a legal issue, you could contact one of the services listed below for more information.

If you have a legal problem that is to do with mental health care or treatment or hospitalisation, you can contact the Mental Health Advocacy Service (MHAS) for legal advice. The MHAS may also be able to represent you at a Mental Health Review Tribunal hearing.

To contact the Mental Health Advocacy Service call (02) 9745 4277 or click here. You can telephone for an appointment to speak to a lawyer at their Burwood office, or they can provide information and advice over the telephone.

For more information also click here.

There are other specialised legal services for children and young people in NSW:

Marrickville Legal Centre is a Community Legal Centre that has a Young People’s Legal Service that provides free legal information, advice and assistance to young people aged twenty five (25) and younger. Phone: (02) 9559 2899 between 9:30am – 5:00pm, Monday – Friday.

The Shopfront Youth Legal Centre is a Community Legal Centre providing free legal information, advice and assistance for homeless and disadvantaged young people aged twenty five (25) and younger. Phone: (02) 9322 4808 between 9:30am – 5:30pm, Monday – Friday.

Legal Aid NSW Children’s Legal Service can provide advice and representation in the Children’s Courts for welfare or criminal matters. For immediate advice, you can call the Legal Aid Youth Hotline: Freecall: 1800 101 810* between 9am to midnight on weekdays, or 24-hours service from Friday 9am to Sunday midnight (and on public holidays).

Youth Law Australia (YLA) is a community legal service that is dedicated to helping children and young people in Australia and their supporters to find a legal solution to their problems. They are Australia’s only national, technology-based community legal service, YLA connect and empower young Australians with free legal information and knowledge, and work to help keep more children in school, out of trouble and free from bullying, harassment or child abuse.

*Mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

Updated July 7, 2020