Mental health

Can I get a copy of my rights from the hospital?

Upon arrival at a mental health facility, involuntary patients must be given a written statement of their rights as well as a verbal explanation of those rights, which are set out in the legislation.

What happens after I arrive at a mental health facility?

You must be seen by a facility doctor not later than 12 hours after you arrive at the mental health facility.

If you are a person who is already in a mental health facility as a voluntary patient, and you have been told you are now to be kept in the facility against your will, you must be seen by a facility doctor not later than 12 hours after it is decided to keep you in the facility.

Can a doctor examine me by video?

You may be seen by a doctor in person or by audio-visual link (AVL) when you are being examined by a doctor for the purposes of deciding whether you should be detained. AVL should only be used if it is not reasonably practicable for a doctor to examine you in person, and the doctor doing the examination is able to examine you properly using AVL. The examination should generally take place in private.

When can I be kept in a mental health facility against my will?

You can be kept in a mental health facility against your will if:

• you are certified by the facility doctor as a mentally ill person or a mentally disordered person, and
• no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

The doctor will decide whether or not you are a mentally ill person or a mentally disordered person.

What is the difference between a mentally ill and a mentally disordered person?

A mentally ill person is someone experiencing mental illness and because of that illness there is no alternative to being detained in a mental health facility for the person’s own protection or to protect others. A mentally disordered person is someone whose behaviour shows that he or she needs to be kept in a mental health facility for a short time for his or her own protection from serious physical harm or to protect other people from serious physical harm.

The facility cannot continue to keep you against your will unless at least one other doctor also finds that you are a mentally ill person or a mentally disordered person. At least one of the doctors who sees you must be a psychiatrist.

How long can I be kept in a mental health facility against my will?

If you are found to be a mentally disordered person, you can only be kept in a mental health facility for up to three days, not including weekends and public holidays from the date on which a second doctor, a psychiatrist if the first one was not, has certified you as mentally disordered.

During this time you must be seen by a doctor at least once every 24 hours. You may be examined or observed by audio visual link in some situations. The doctor will then complete the clinical about your mental state.

You can't be detained as a mentally disordered person more than three times in any month.

If you are found to be a mentally ill person, you will be kept in the mental health facility until you see the Mental Health Review Tribunal who will hold a mental health inquiry to decide what will happen to you.

For more information, see Duty service in hospitals on the My problem is about section of our website.

How can I get out of a mental health facility?

The doctor can discharge you at any time even if the Mental Health Review Tribunal have made an order allowing you to be detained or before you see the Mental Health Tribunal. The doctor must discharge you if you are no longer a mentally ill or mentally disordered person.

You, or a friend or relative, may at any time ask the medical superintendent or another authorised medical officer to let you out. You must be let out if you are not a mentally ill person or a mentally disordered person or if the medical superintendent or another authorised medical officer thinks that there is other appropriate care reasonably available to you.You or a person who asks for you to be let out may appeal to the Mental Health Review Tribunal against a refusal by the medical superintendent or another authorised medical officer to let you out.

For more information, see Duty service in hospitals on the My problem is about section of our website.

Can I be treated against my will?

The facility staff may give you appropriate medical treatment including medication, even if you do not want it, for your mental condition or in an emergency to save your life or prevent serious damage to your health. The facility staff must tell you what your medical treatment is if you ask. You must not be given excessive or inappropriate medication.

What if I can't give consent because of my condition?

You may be operated on if a person who is your designated carer and the Secretary of the Ministry of Health agree and you are incapable of consenting. If you do not have a designated carer or your designated carer does not agree that you should have the operation and you are not capable of consenting to the operation or are capable but refuse to consent, the Mental Health Review Tribunal can provide consent if they believe it is in your interests to have the operation.

Can I be given electro convulsive therapy (ECT) against my will?

Yes, but only if the Mental Health Review Tribunal determines at a hearing that it is necessary or desirable for your safety or welfare. You have a right to attend that hearing.

When is a mental health inquiry held?

A mental health inquiry must be held as soon as practicable (usually 7-14 days) after it is decided to keep you in a mental health facility against your will because you are a mentally ill person.

What is the purpose of the mental health inquiry?

The Mental Health Review Tribunal will decide whether or not you are a mentally ill person.

If the Mental Health Review Tribunal decides that you are not a mentally ill person, you must be let out of the mental health facility.

I am involuntarily detained and haven't been to the Tribunal yet. When will a Legal Aid lawyer contact me?

A Legal Aid lawyer will always be available to represent you before your first hearing at the Mental Health Review Tribunal when you are involuntarily detained. A lawyer will contact you before your hearing, usually on the day before. If your hearing is in the afternoon, you may be contacted by your lawyer on the morning of the hearing.

For more information, see Duty service in hospitals on the My problem is about section of our website.

Will I be represented by a lawyer at the mental health inquiry?

You must be represented by a lawyer at a mental health inquiry unless you do not want to be represented.

A lawyer from Legal Aid will offer you representation. If you want someone other than a lawyer to represent you, you can ask the Mental Health Review Tribunal and they can decide if that person can represent you.

You can tell the Tribunal what you want or have your lawyer tell the Tribunal what you want.

What will happen at the mental health inquiry?

If the Mental Health Review Tribunal decides that you are a mentally ill person, the Mental Health Review Tribunal will then decide what will happen to you. Consideration must be given to the least restrictive environment in which care and treatment can be effectively given. The Mental Health Review Tribunal may make an Order that you be kept in a mental health facility as an involuntary patient for a set time (not more than three months) or that you be let out of the mental health facility. If you are let out, the Mental Health Review Tribunal may make a Community Treatment Order requiring you to have certain treatment after you are let out.

The Mental Health Review Tribunal may adjourn the inquiry for up to 14 days where it considers that it is in your best interests. You may be detained in the hospital during the period of adjournment if the doctors believe you remain a mentally ill person.

If the Mental Health Review Tribunal makes an Order that you are to remain in a mental health facility as an involuntary patient, the Mental Health Review Tribunal must also consider whether you are capable of managing your financial affairs. If the Mental Health Review Tribunal is not satisfied that you are capable, an Order must be made for the management of your affairs under the NSW Trustee and Guardian Act 2009.

What rights do I have at a mental health inquiry?

You must be represented by a lawyer at a mental health inquiry unless you do not want to be represented. A lawyer from Legal Aid will offer you representation. If you want someone other than a lawyer to represent you, you can ask the Mental Health Review Tribunal and they decide if that person can represent you. You can tell the Tribunal what you want or have your Lawyer Tribunal what you want.

When you go to the Tribunal you can wear street clothes, be helped by an interpreter and have a designated carer or any other person who is your principal care provider, relatives and friends told about the inquiry. You can also apply to see your medical records. If the doctors refuse to allow you to see your medical records you can ask the Tribunal to decide whether you can see your medical records.

What are my rights of appeal if I have been made an involuntary patient?

You, a carer, friend or relative, may at any time ask your doctor to discharge you. If your doctor refuses or does not respond to your request within three working days you, a carer, friend or relative, may lodge an appeal with the Mental Health Review Tribunal.

You will be given a notice setting out your appeal rights.

What happens when the time set by an Order making me an involuntary patient has nearly ended?

The facility medical staff will review your condition before the end of the Order and the mental health facility may either discharge you or apply to the Mental Health Review Tribunal for a further Order.

The Tribunal must let you out of the mental health facility if it decides that you are not a mentally ill person or if it feels that other care is more appropriate and reasonably available.

Who can I ask for help?

You may ask any facility staff member, social worker, doctor, official visitor, chaplain, your own Lawyer or LawAccess NSW for help.

Can I see an official visitor?

You may ask any facility staff member if you can see an official visitor. Staff will arrange for a visit by an official visitor.

Can I ask a friend or relative to be given information about me?

You may nominate up to two people to be your designated carers, including a person who is also your principal care provider, while you are in a mental health facility. If you do not nominate someone to be your designated carer the doctor may recognise your principal care provider as the person to receive information.

A designated carer or any other person who is your principal care provider may ask for information on your behalf and will be informed if you are kept in a mental health facility, subject to a mental health inquiry, transferred or discharged and of proposed special mental health treatments or surgical operations.

You and a designated carer or any other person who is your principal care provider also have the right to be given information about follow-up care if you are discharged.

Can I get a copy of my rights from the hospital?

Upon arrival at a mental health facility, voluntary patients must be given a written statement of their rights as well as a verbal explanation of those rights, which are set out in the legislation. 

What happens about my treatment at a mental health facility?

The medical staff must tell you about your treatment, treatment alternatives and the effects of treatment if you ask. They must also tell you about treatment plans and recovery plans for your ongoing care and get your agreement to them, if you are able to agree.

You can accept or refuse any treatment and you can stop agreeing to a treatment at any time. You must not be given excessive or inappropriate medication.

Who else may be at a mental health facility?

Other patients in the mental health facility may be very ill and being kept and treated in the mental health facility without their agreement.

How can I get out of the mental health facility?

You can leave the mental health facility at any time but you need to tell a staff member that you wish to leave. You may also be discharged by the medical superintendent or another authorised medical officer if they think you are not likely to get a benefit from more care or treatment as a patient.

When can I be kept in the mental health facility against my will?

You can be kept in a mental health facility against your will if you are certified by the facility doctor as a mentally ill person or a mentally disordered person. You may be kept for up to two hours against your will so that the facility doctor may see you to decide whether to certify you.

The facility can't continue to keep you against your will unless at least one other doctor also finds that you are a mentally ill person or a mentally disordered person. At least one of the doctors who sees you must be a psychiatrist.

What is the difference between a mentally ill person and a mentally disordered person?

A mentally ill person is someone who has a mental illness and who needs to be kept in a mental health facility for their own protection or to protect other people from serious harm.

A mentally disordered person is someone whose behaviour shows that they need to be kept in a mental health facility for a short time for their own protection or to protect other people from serious physical harm.

Is there any review of decisions about me or of my case?

If a mental health facility doctor who is not the medical superintendent refuses to admit you as a voluntary patient or decides to discharge you from the facility, you can ask the medical superintendent of the facility to review that decision.

If you are a voluntary patient in a mental health facility for more than 12 months, the Mental Health Review Tribunal will review your case and also find out whether you have agreed to stay as a patient. The Tribunal may Order you to be discharged after reviewing your case.

Can I receive electro convulsive therapy (ECT) against my will?

No.

Who can I get help from?

You may ask any facility staff member, social worker, doctor, official visitor, chaplain, your own Lawyer or LawAccess NSW for help.

Am I allowed to see an official visitor?

You may ask any facility staff member if you can see an official visitor if you have any concerns about the mental health care being provided to you. Staff will arrange for a visit by an official visitor.

Can a friend or relative be given information about me?

You may nominate up to two people to be your designated carers, including a person who is also your principal care provider, while you are in a mental health facility. If you do not nominate someone to be your designated carer the doctor may recognise your principal care provider as the person to receive information.

A designated carer or your principal care provider may ask for information on your behalf and will be informed if you are kept in a mental health facility, transferred or discharged and of proposed special mental health treatments.

You and a designated carer or any other person who is your principal care provider also have the right to be given information about follow-up care if you are discharged.

What powers does the Mental Health Review Tribunal have?

The Mental Health Review Tribunal is a specialist Tribunal that can make Orders about the treatment and care of a person with a mental illness, including determining whether or not a person has a mental illness. 

The Mental Health Review Tribunal deals with:

• mental health inquiries
• reviews of voluntary patients
• reviews of involuntary patients
• appeals against refusals to discharge
• applications for Community Treatment Orders
• applications for electroconvulsive therapy
• Financial Management Orders
• Guardianship Orders.

Can the Mental Health Review Tribunal make Financial Management Orders?

The Mental Health Review Tribunal can make Financial Management Orders about people who are patients in a mental health facility and don’t have the capacity to manage their own affairs.

A person can apply to have this Order revoked if they can show they are able to manage their own finances and it is in their best interests to revoke the Order.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

For further information, see Financial Management Orders on the Mental Health Review Tribunal website.

Can the Mental Health Review Tribunal appoint someone to be my guardian?

Yes, the Mental Health Review Tribunal can make a Guardianship order. This means that another person (or people) can make personal or lifestyle decisions on your behalf. These decisions can include where you live, what support services you need and what medical treatment you should have.

For more information, see Guardianship Orders in our Planning Ahead topic.

Who sits on the Mental Health Review Tribunal?

The Tribunal often travels to mental health facilities, but sometimes proceedings in rural or remote areas are done by telephone or audio-visual link. 

The Tribunal is usually made up of three members, including a:

• barrister or solicitor
• psychiatrist
• suitably qualified person who could be a carer or person with extensive experience in mental health.

A legal member usually sits alone for:

• a mental health inquiry
• an appeal by a person who has not yet had a mental health inquiry
• certain types of routine matters like uncontested variations of a Community Treatment Order.

Can I appeal a Mental Health Review Tribunal Order?

You can appeal most decisions made by the Mental Health Review Tribunal to the Supreme Court. 

Depending on the issue, Financial Management Orders may be appealed at the NSW Administrative Appeals Tribunal (NCAT) and the Tribunal hears appeals against Community Treatment Orders made by Magistrates. 

Before filing an appeal, you should get legal advice.

Does the Mental Health Review Tribunal deal with criminal offences?

Courts usually deal with criminal offences, even if a person is mentally ill, or has a cognitive impairment or suffers from a mental illness or condition. 

In some circumstances the Mental Health Review Tribunal makes decisions about people charged with criminal offences.  A forensic patient is someone who has been charged with a serious criminal offence and is mentally ill and/or has other forms of mental or cognitive impairment.

The Mental Health Review Tribunal reviews forensic patients who:

• have been found not guilty because of mental illness
• were found unfit to be tried
• have been transferred to a hospital from prison due to mental illness.
  

Will I be represented at the Mental Health Review Tribunal?

You will usually be represented by a Legal Aid lawyer for the following matters before the Mental Health Review Tribunal:

• mental health inquiry 
• mental health review under section 37(1)(a) of the Mental Health Act 2007. This is when the Tribunal reviews the case of an involuntary patient at the end of the person's first period of detention.
• mental health review under section 37(1)(b) of the Mental Health Act 2007. This is when the Tribunal reviews the case of an involuntary patient at least once every three months for the first 12 months the person is an involuntary patient.
• mental health review under section 63 of the Mental Health Act 2007. This applies to a person who is under a Community Treatment Order and has been detained in hospital. The authorised medical officer will need to have the detained person brought before the Tribunal no later than three months after the person is detained and at least every three months while the person is detained.
• Financial Management Orders
• an appeal for an assessable person made under section 44 of the Mental Health Act 2007. This is when an assessable person appeals the decision of the authorised officer who refused their application to be discharged or fails to determine the application within three working days.
• Electro convulsive therapy (ECT) matters.
  

If you are an inpatient, you can request to be represented by a Legal Aid lawyer for a Community Treatment Order. If you are not an inpatient, you will need to apply for a means test.

If you are not sure, you should get legal advice.

For more information, see What happens at civil hearings? on the Mental Health Review Tribunal website. 

How do I access Legal Aid?

The Mental Health Advocacy Service is a team of specialist lawyers from Legal Aid who can help at the tribunal. 

The first time that you go to the tribunal if you are an involuntary patient, a Legal Aid lawyer will represent you. You don’t need to organise this and a lawyer will usually contact you the day before your hearing. If your hearing is in the afternoon, you may be contacted by a lawyer in the morning. 

If you want legal advice, or want to be legally represented, contact LawAccess NSW. 

How can I prepare for a hearing at the Mental Health Review Tribunal?

The Mental Health Review Tribunal has three short online videos to explain the role of the Tribunal and the hearing process.

For more information, see The Tribunal Process - Short Films on the Mental Health Review Tribunal website. 

What is a Community Treatment Order?

A Community Treatment Order (CTO) is an Order by the Mental Health Review Tribunal (and in some circumstances a Magistrate) requiring a person to have particular treatment. This can include medication, therapy, counselling, management and rehabilitation. 

The treatment can only relate to your mental illness including related conditions, such as the treatment of side effects of medication. The treatment can't be for other conditions. The Tribunal can't decide where you must live, but if you move you should tell your case manager.

What happens if I don't follow the Community Treatment Order?

If you do not follow the Community Treatment Order (CTO), you may be warned that if you don’t follow the order, you may be taken to a mental health facility. 

If you still don’t follow the CTO, you might get a breach notice. This is a written notice telling you that you need to come with hospital staff for treatment. 

If you don’t follow the CTO after getting a breach notice, a breach order may be made. This is an order for police to take you to a mental health facility for treatment. Police can use force if necessary to take you there.

How long does a Community Treatment Order last?

Most CTOs last for six months, although the Tribunal has the power to impose a CTO for up to 12 months.

For more information, see Community Treatment Orders on the Mental Health Review Tribunal website.

Can I have my CTO or Financial Management Order revoked or varied? 

Yes. You must make an application to the Mental Health Review Tribunal. You must have evidence to support the application like a letter or report from a doctor indicating that the order is not needed or should be changed. 

The Tribunal will only hear the application if you have supporting evidence. Usually, an application for revocation or variation should be made before thinking about appealing. 

Can I appeal a Community Treatment Order?

If the Community Treatment Order (CTO) was made by a Magistrate, you can appeal to the Tribunal. If the CTO was made by the Tribunal, you can appeal to the Supreme Court.  

You can appeal either:

• the length of the CTO
• any questions about the law or facts relevant to the CTO in your case.

You can only appeal against the length of the order if an order was made for more than six months, or the order did not state a specific length of time that it would apply.

There is no time limit to make this type of appeal. 

General appeals where the Supreme Court hears the matter again from the start must be made within 28 days.

Before you appeal a CTO, you should get legal advice. Instead of appealing, you may be able to make an application to revoke or vary the CTO instead. 

For more information on revoking or varying a CTO, see the FAQ Can I have my CTO or Financial Management Order revoked or varied?

Will I be represented by a lawyer?

If you want to be represented by a lawyer for a review or appeal of a Community Treatment Order, you can speak to a private lawyer or apply for a grant of Legal Aid. Legal Aid will decide if you are eligible or not.

How can I make a complaint about my doctor or hospital staff?

You can make a complaint about your treatment and the conditions of a mental health facility to:

• the medical superintendent of the hospital
• an Official Visitor 
• the Health Care Complaints Commission.
  

Who is an Official Visitor?

Official Visitors are people with experience in mental health treatment and care who visit mental health facilities. They can talk to you about your rights and any concerns you have. 

If you want to talk to an Official Visitor you can:

• speak to them when they visit your mental health facility
• leave a written note in the Official Visitor Box at your mental health facility
• call the Official Visitors Phoneline on 1800 208 218
• send an email to OfficialVisitorsProgram@health.nsw.gov.au.

For more information on how to contact an Official Visitor, see Contact Us on the Official Visitor Program website.

How can I make a complant about a hospital, doctor or nurse?

The Health Care Complaints Commission investigates complaints in NSW. They can investigate complaints in both public and private hospitals, about doctors and nurses. You can make a complaint online, or you can call to complain.

You can complain about the quality of care you received or unprofessional behaviour by your doctor.

You can make the complaint yourself or someone else can make a complaint on your behalf, but they may need a written authority from you to allow the Commission to investigate the complaint. Complaints should be made within 60 days.

For more information about making a complaint, see Make a complaint online on the Health Care Complaints Commission website.

How can I make a complaint about the NSW Civil and Administrative Tribunal?

You can lodge a complaint with the NSW Civil and Administrative Tribunal (NCAT) if you are not happy with the conduct of a Tribunal member or registry staff, or NCAT processes or services.

Your complaint must be in writing. NCAT can’t consider anonymous complaints. 

To lodge a complaint with NCAT, see Feedback and complaints on the NCAT website.

You can’t complain about NCAT if you are unhappy with a decision that was made, however you may be able to appeal the decision, or apply for a review of that decision. If you are considering an appeal or review, you should get legal advice.

How can I make a complaint about the Mental Health Review Tribunal? 

You can complain about the conduct of staff or Tribunal Members. Complaints should be made in writing and be sent to: 

The President

Mental Health Review Tribunal

PO Box 247

Gladesville NSW 1675.

If you are unhappy about the decision in your case, you may be able to appeal the decision, or apply for a review of that decision. 

Before you lodge an appeal or review, you should get legal advice.

How can I make a complaint about my lawyer or the Mental Health Advocacy Service?

If you have a problem with your lawyer, try speaking to your lawyer first. If you can’t fix your problem, you may be able to file a complaint. The Mental Health Advocacy Service is a part of Legal Aid NSW and you can lodge a complaint with Legal Aid NSW. 

For more information and to make a complaint, see Feedback and complaints on the Contact us section of our website.

You can also make a complaint to the Office of the Legal Services Commissioner. The Commissioner investigates complaints about lawyers in NSW. 

For more information, see Complaints on the Office of the Legal Services Commissioner website.

Can I schedule my family member/friend?

No, family and friends can't get another person scheduled. If you have concerns about the mental health of your family member or friend, you can call your local acute care team or ambulance, who can schedule a person.

You can write to a mental health facility and ask them to detain your relative or friend. It is up to a doctor whether or not they will detain that person. The doctor can only detain the person on your written request if it is not appropriate to have them examined by a doctor because of the distance involved and the urgency of the circumstances.

Who can be a designated carer?

A designated carer is a person nominated by a patient in a mental health facility. There can be up to two designated carers for the same person.  

Some examples of designated carers include:

• the spouse or partner
• a person who has primary responsibility for providing support and care
• a close friend or relative who is in frequent contact with the person
• a parent if the person is under the age of 14
• a person appointed as a Guardian.
  

For more information, see Support for family, friends and carers on the My problem is about section of our website.

How is a designated carer appointed?

A person can nominate a designated carer  by completing a Nomination of Designated Carer(s) form. The nomination is effective for 12 months unless it is changed or revoked in writing by the person.

A nomination can be refused if the person does not have mental capacity to make a nomination, or if it would but anyone at risk of harm.  A person can also exclude a specific person from being their designated carer. 

If the person refuses to nominate a designated carer, an authorised medical officer can nominate someone on their behalf.

Who can be a principal care provider?

The principal care provider is the person who is primarily responsible for providing day to day support and care.  They can also be a designated carer. They have the same rights to information as the designated carer.  

The principal care provider can be selected by an authorised medical officer.

For more information, see Support for family, friends and carers on the My problem is about section of our website.

Am I entitled to know the treatment and upcoming Tribunal dates for my loved one in a mental health facility?

If you are the nominated designated carer or a principal care provider, you have the right to receive updates on the persons treatment and Tribunal proceedings. The hospital has the obligation to keep you informed. You may receive a formal notice or a telephone call to update you of upcoming Tribunal dates.

If you are not the nominated designated carer or principal care provider, you do not have the same rights to information.

For more information for carers, see the Mental Health Carers NSW website and Mental Health on the My problem is about section of our website.

What notifications should I receive as a designated carer or principal care provider?

You should be given information:

• when the patient is detained in a mental health facility
• if the patient is absent from the facility without permission
• when the patient is discharged 
• if there is a reclassification of the patient being admitted as a voluntary patient
• if the patient is considered for a community treatment order and an application to the Mental Health Review Tribunal is made
• if the community treatment order is being varied or revoked
• if the patient is being considered for Electroconvulsive Therapy (ECT)
• if the patient requires a surgical procedure or special medical treatment and consent is required
• if the patient will be transferred to another mental health facility.

For more information, see Support for family, friends and carers on the My problem is about section of our website.

What requests can I make as a designated carer or principal care provider for a mentally ill person?

If you are a designated carer or principal care provider, you can:

• ask for information about the types and dosages of medication being administered
  
• request an Official Visitor visit
• appeal to the Mental Health Review Tribunal against the refusal to discharge the mentally ill person from hospital. 

For more information, see Support for family, friends and carers on the My problem is about section of our website.

What can I do if the hospital or mental health facility is refusing to give me information as the designated carer or principal care provider?

You should speak to the social worker or privacy contact officer at the hospital or the mental health facility about the information you are requesting. 

For more information, see Support for family, friends and carers on the My problem is about section of our website.

Where can I get more help and support as the designated carer or principal care provider of a person with a mental illness?

The NSW Family and Carer Mental Health Program provides educational sessions for the families of people living with a mental illness and is funded by the NSW Ministry of Health through Mental Health. 

For more information, see: 

• Training and Education on the Mental Health Carers NSW website, and 
• Support for family, friends and carers on the My problem is about section of our website.