download complete manual (pdf) - the mental health rights manual
TRANSCRIPT
Help with using the PDF version of the Manual
Welcome to the PDF version of the Mental Health Rights Manual (MHRM).
This is exactly the same manual that you will find online at http://manual.mhcc.org.au/ , however it is all in one place in order for you to conveniently
download and print.
If you have not used PDFs before, they are a simple way to view content as it was intended to be read as a document, rather than as a web page. You can
however use it without printing, and below are some hints and tips how to find information quickly and easily in the document.
If you don’t see the index on the left hand side (screen only, not when printed) – then you need to press the button shown below, which is located to the far
left of your screen, near the top:
This toggles between showing and hiding the table of contents that allows you to jump quickly to the section you are interested in.
If you want to search for a specific key word or phrase, then simply right-click your mouse button (that’s the right hand mouse button, not the one you use to
Home
The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with
Mental Illness in NSW (3rd Edition) 2011
Every person with a mental illness should have the right to exercise all civil, political, economic, social and cultural rights as recognised in the UN Universal
Declaration of Human Rights.
The Mental Health Coordinating Council presents its online NSW Mental Health Rights Manual (3rd Edition) which extensively builds on the 2004 online
edition and the original manual published in 1995. By incorporating the latest legislative reform and government directives, the new edition ensures ongoing
access to current legal information for anyone in contact with the mental health sector.
Written in plain language, the manual is an invaluable readily accessible resource, bringing together vital information crucial to anyone having to navigate the
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Foreword
The NSW Mental Health Rights Manual (3rd edition) is a greatly expanded 'new look' online guide to the legal and human rights for people with a mental illness in NSW. This edition incorporates the latest legislative reform and government directives, and will ensure ongoing access to current legal information
for anyone in contact with the mental health and criminal justice systems. Written in plain language, this edition is an invaluable readily accessible resource,
bringing together vital information crucial to anyone who has to navigate the complex terrain, enabling them to become acquainted with their rights, the legal
and service systems, find out where they can access support, information and guidance for themselves or those that they wish to assist.
Whilst there is a plethora of specific information available, there is no other resource that covers a broad spectrum of topics as well as explaining the
interface between the legal and service systems as they interact in NSW. The 3rd edition speaks to a diverse mental health community, and has been developed specifically for people with a mental illness, their carers and significant others and non-legal community service providers in NSW.
The partnership between the Mental Health Coordinating Council (MHCC) and the Public Interest Advocacy Centre (PIAC) in producing this Manual has
been a very positive and fruitful one both organisations bringing distinct perspectives and expertise to the project. Consultations with consumers and carers have provided invaluable direction for the Manual's contents as has the engagement of advocates and key organisations operating in the mental health and
legal sectors. Keeping the Manual user-friendly has been a particular focus of all involved ensuring as much as possible that it is accessible as well as
comprehensive.
I commend the NSW Mental Health Rights Manual to you on behalf of MHCC.
Jenna Bateman
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Publication information
The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with Mental Illness in NSW (3rd Edition) 2011
Published by the Mental Health Coordinating Council Inc
Ground Floor, Broughton Hall
LILYFIELD NSW
(MHCC)
Consultants to the project: Public Interest Advocacy Centre (PIAC), Peter Dodd,Solicitor, Health, Policy and Advocacy, Robin Banks (CEO, PIAC until September 2010), assisted by Ka Ki Ng, PIAC (until March 2011)
Edited by Robin Banks, PIAC (until September, 2010) and Corinne Henderson, MHCC
Prepared as an internet resource by Aventia Consulting
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Acknowledgements
This publication has been produced with the financial assistance of the Law and Justice Foundation of NSW. The Foundation seeks to advance the fairness
and equity of the justice system and to improve access to justice, especially for socially and economically disadvantaged people. Information about the
Foundation can be found at: http://www.lawfoundation.net.au
Disclaimer: any opinions expressed in this publication are those of the authors and do not necessarily reflect the
views of the Law and Justice Foundation's Board of Governors.
The Mental Health Coordinating Council and the Public Interest Advocacy Centre particularly thank consumers and carers who generously consented to be interviewed about their experiences in engaging in the mental health and legal systems. They provided rich personal evidence and
information useful to people with mental illness and carers in a diversity of contexts.
The Mental Health Coordinating Council and the Public Interest Advocacy Centre gratefully thank members of the Mental Health Rights Manual Advisory
Group, who generously gave their time over 18 months to attend meetings and contribute towards the development of this revised and largely reconstructed
online manual:
l Carol Berry, NSW Council for Intellectual Disability
l Elizabeth Barry, Health Care Complaints Commission
l Sharny Chalmers, Public Interest Advocay Centre* l Cherie Carlton, NSW Institute of Psychiatry
l Esther Cho, NSW Guardianship Tribunal
l Peter Dodd, Public Interest Advocacy Centre
l Nihal Danis, Mental Health Advocacy Service, Legal Aid NSW* l Rebecca Doyle, NSW Consumer Advisory Group – Mental Health Inc
l Jonathan Harms, NSW Australian Relatives and Friends of the Mentally Ill
l Corinne Henderson, Mental Health Coordinating Council
l Justin Liebmann, Consumer
l Leslee Murphy, Office of the NSW Trustee and Guardian
l Ka Ki Ng, Public Interest Advocacy Group*
l Karen Oakley, NSW Consumer Advisory Group – Mental Health Inc*
l Francis Rush, NSW Office of the Public Guardian
l Therese Sands, People with Disability Australia
l Jo Shulman, NSW Disability Discrimination Legal Centre
l Associate Professor Meg Smith, University Western Sydney*
l Pam Verrall, Mental Health Association NSW*
* Please note that some members of the Advisory Group have moved onto other positions in other organisations, the details reflect the organisations that they represented whilst the committee met.
The Mental Health Coordinating Council and the Public Interest Advocacy Centre also wish to thank the following contributors who were particularly
generous in sharing their professional knowledge and expertise in relation to specific segments of this Manual:
l Peter Bazzana, NSW Institute of Psychiatry
l Maria Bisgoni, NSW Mental Health Review Tribunal
l Rodney Brabin, NSW Mental Health Review Tribunal l Esther Cho, NSW Guardianship Tribunal
l Nihal Danis, NSW Mental Health Advocacy Service, Legal Aid* l Sarah Hanson, NSW Mental Health Review Tribunal l Jonathan Harms, Australian Relatives and Friends of the Mentally Ill
l The Hon Greg James QC, NSW Mental Health Review Tribunal
l Leslee Murphy, Office of the NSW Trustee and Guardian
l Melanie Oxenham, NSW Office of the Public Guardian
l Christine Paull, NSW Consumer Trader and Tenancy Tribunal
l Francis Rush, NSW Office of the Public Guardian
Thanks also to the Women in Prison Advocacy Network (WIPAN) for the use of some material from their 'Self Help Guide for Women Prisoners'.
MHCC particularly thank Peter Dodd, Solicitor, Health Policy & Advocacy (PIAC) and Robin Banks who until September 2010 was Chief Executive Officer at
PIAC. As consultants to the project they worked on the third edition's new material assisted by Ka Ki Ng, (who was with PIAC until April 2011).
MHCC congratulate PIAC on so successfully presenting complex legal material in such easily understandable language enabling the lay person to approach
the resource effortlessly and find answers to the question at hand, without the need to wade through the entire extensive contents.
Lastly, MHCC particularly thank Corinne Henderson, Senior Policy Officer at MHCC who coordinated this extensive project, chaired the reference group,
conducted consulations broadly across the sector, determined the Manual's final contents and editing.
The many website links available in this manual connect to hundreds of other freely available government and non-government service and information
websites as well as to Australian state and Federal Acts and International Charters. The organisations concerned own the copyright of material on their
Disclaimer
l The legal and other information contained in this Section is up to date to Wednesday, 25 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Copyright information
© The Mental Health Coordinating Council Inc & the Public Interest Advocacy Centre Ltd (Joint copyright © 2011)
This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Mental Health Co-ordinating Council and the Public Interest Advocacy Centre and other referenced contributors.
To reference this Manual please use the following protocol:
Mental Health Coordinating Council. The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with Mental Illness in NSW (3rd edition) 2011. The Mental Health Coordinating Council & the Public Interest Advocacy Centre Ltd (Joint cpyright © 2011). Online resource:
http://mhrm.mhcc.org.au
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Disclaimer and currency
While every effort has been made to ensure the information in this Manual is as up to date and as accurate as possible, the law is complex and constantly
changing. Readers are advised to seek expert advice when faced with specific problems.
This Manual is intended as a guide to the law and should not be used as a substitute for legal or medical advice. The information contained within the
Manual applies to people who live in, or are affected by, the law as it applies in New South Wales on the date stated on each section.
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Background to this edition of the Manual
The first edition of the NSW Mental Health Rights Manual was a project co-ordinated by the Mental Health Coordinating Council (MHCC) in 1995, published by Redfern Legal Centre Publishing with the assistance of the Law and Justice Foundation of NSW. In 2004, again with the support of the Law and Justice Foundation, the second edition of the Manual was developed as an online resource. Late in 2008, MHCC were successful in securing part funding from the Law and Justice Foundation to update, extensively rewrite and redesign the third edition of The Mental Health Rights Manual: A Consumer Guide to the
Legal and Human Rights of People with Mental Illness in NSW (3rd edition) 2011.
The NSW Mental Health Rights Manual (3rd edition) 2011 is a 'living document' and MHCC intends to regularly update its contents to maintain relevance to legislative change, new standards and guidelines and environmental change.
Whilst not designed as a legal resource, when MHCC first contemplated an update of the Manual, it was considered really important to present information with as much legal accuracy as possible, but do so in a form that is easy digestible for anyone interacting with the legal and mental health systems in NSW.
For this reason MHCC invited the Public Interest Advocacy Centre (PIAC) to become consultant to the project.
Peter Dodd, Solicitor, Health Policy & Advocacy (PIAC) and Robin Banks who until September 2010 was Chief Executive Officer at PIAC, were consultants
to the project and worked on the third edition's new material assisted by Ka Ki Ng, Research Officer (who was with PIAC until April 2011).
The manual successfully presents complex legal material in such easily understandable language enabling the lay person to approach the resource effortlessly and find answers to the question at hand, without the need to wade through the entire extensive contents.
Corinne Henderson, Senior Policy Officer, MHCC coordinated this extensive project, chaired the reference group, conducted consulations broadly across the sector, determined the Manual's final contents and editing.
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Terminology and focus
Mental Health Coordinating Council (MHCC) acknowledge the wide range of language and terminology used in the field of mental health and have
endeavoured throughout this Manual to be sensitive to its usage. However, there are sections where specific terms related to legislation need to be used:
for example the 'treatment, care and control' of people under the Mental Health Act 2007 (NSW), may not be a phrase that the MHCC would choose to use
in regards to the principles and standards for Recovery Orientated Practice in mental health services, however, they have a particular meaning in the
context of the Mental Health Act 2007 (NSW).
The purpose of the 3rd edition is to bring together in one resource the package of mechanisms, services and systems available to people with mental
illness, their families, carers and others, including health professionals. It includes the overlapping issues to do with treatment and health care rights,
disability support rights and the participatory and civil rights of people with mental disorders to participate in society as parents, employees, community
members and leaders.
However, whilst MHCC takes a leadership role in promoting legislative reform and policy development in other spheres, this Manual does not seek to
advocate around the law, it merely informs on the status of the law as its stands, presenting realistic ways in which people can exert their rights and meet
their obligations.
MHCC is committed to ongoing communication with government agencies about the efficacy and outcomes of legislation and policies currently in place with
regards to mental health. Its discussions with members and with government are published regularly in policy and position statements and submissions
that are freely available through the Mental Health Coordinating Council's website at: www.mhcc.org.au
To uphold human rights requires more than legislation. It requires that people with mental illness and carers know their rights, and that the professions are
adequately trained in these as well as codes of ethics and practice, standards and quality improvement systems. All such systems need to be supported so
that working cultures in human services support recovery-orientated practice, prioritising the need for people with mental illness to be as involved as much
as possible in decision-making about their care and treatment, as well as being meaningfully involved in the development of policy and service delivery
models. All workplaces need to nurture an inclusive society able to respond to people when they are at their most vulnerable, and provide the opportunities
for people to contribute in the community.
Some people with mental illness may at some stage find themselves in hospital, either voluntarily or involuntarily, and so will come into contact with
treatment orders under the Mental Health Act 2007 (NSW). A simplified overview of the Act is provided so that people dealt with under the Act in the course
of illness may understand their rights and responsibilities and how to maximise their autonomy within the system. However, a more in-depth Guidebook to
the Mental Health Act 2007 (NSW) will be available through NSW Health, the NSW Institute of Psychiatry and the NSW Mental Health Review Tribunal
at a later date on the NSW Mental Health Review Tribunal website at: http://www.mhrt.nsw.gov.au/
When people return to a level of recovery and wellness where they are equal and active partners in their own treatment decision-making, then the rights that
apply to all citizens in obtaining health care also apply to a person with ongoing mental illness. People then simply use mental health services and other
services without being involuntarily treated and where contact with health professionals is in no way coercive.
MHCC aims to contribute to a system of services and advocacy structures in which the status, independence and human rights of people with mental
illness, families and carers is advanced. Its aim is to promote the recovery and return to active participation in the community at all levels of all people with
mental illness.
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Chapter 1 - Introduction
Part 1 Section A: About this Manual: what the Manual seeks to do and what it is not
This Mental Health Rights Manual (the Manual) is a resource for consumers involved in the NSW mental health system as well as carers of those
consumers. The aim is to provide a guide to key areas of the law and on how to get help. It is written in plain English, free of legal and/or medical jargon. It is
also a useful tool for carers and workers across the mental health and community sector.
In reality we, the authors, also understand that the Manual will often be read and consulted by health workers and lay advocates supporting consumers and
carers, when they are in crisis and seeking urgent help and guidance. In such situations, it is just as important that the information is easy to access, and
written in language that is easily understood.
The Manual is not designed as a guide for lawyers in this area. Many, although not all, of the areas covered by this Manual are also covered by legal texts,
legal practice guides, resources produced by government and the relevant tribunals, all aimed at lawyers, using language that is familiar to those who have
formal legal qualifications. Perhaps, from time to time, lawyers will find the information in the Manual useful, particularly when explaining issues to clients in
plain English. However, lawyers are not the primary audience for which this Manual has been written.
While the Manual is useful for the mental health sector, it is not designed specifically for health professionals. Importantly, if it were drafted for health
professionals, it would contain much more information about occupational health and safety, industrial relations issues, and information about complaints
and disciplinary matters from an employee perspective. There are other sources that health professionals can consult to obtain advice about these matters,
including professional organisations and trade unions.
The existence of the Manual may well provide a useful resource for clinicians and allied health workers in the sense that, hopefully, they can refer
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 2 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Part 1 Section B: How to use this Manual
The Manual covers a broad range of topics in separate sections. Where appropriate the text includes links to other pages in the Manual as well as to other
websites that provide related or more detailed information.
This section of the Manual gives a very brief outline of what each part of the Manual covers. You can use the Index to get an idea of the topics covered and
then click on the particular topic you want to read more about. The Index is always available as a drop-down menu on the left hand side of the section/ page you are on and so you can easily use the Index to go to another part of the Manual by clicking on the entry for that part in the Index.
Each chapter begins with an overview of what is covered. Throughout the Manual, the chapters/ sections include information about where you can get help,
and final chapters 10 and 11B of the Manual have information about legal and advocacy services and supports, how to complain and who to complain to
about particular problems you experience, as well as information on key organisations.
Throughout the Manual there are links to other parts where there is more information about specific issues or processes. You can click on these links at any
time to open different pages. Remember, the Index is always available on your screen so you can easily go back to where you were using the Index or by
using the 'back' arrow on your web browser.
The Manual is designed so that links that take you to other websites should open as a separate browser page so the page of the Manual you were reading
remains open.
For a short summary of what is in each part of the Manual see below.
1B.1: The NSW Mental Health Rights Manual (3rd edition): short summary of contents
Foreword
The Foreword provides a short history of the NSW Mental Health Rights Manual, acknowledges all those involved in developing and authoring its contents,
publishing and copyright details and disclaimers.
Chapter 1 - Introduction
Chapter 1 has three main sections (including this one). These sections introduce you to the Manual and explain what it sets out to do and how to use it.
Chapter 1 also broadly describes the NSW Mental Health system.
Chapter 2 - The legal framework
Chapter 2 has an overview (Section A) then covers three aspects of the legal framework relevant to people with mental illness. These sections give you a
summary of the main laws and standards that are relevant to mental illness in NSW, as well as at a national level and internationally.
Chapter 3 - Health care and treatment
Chapter 3 has an overview (Section A) that includes information on the rights of all those who get health care in Australia that are set out in the Australian
Charter of Healthcare Rights, then deals with seven main aspects of general health care rights in Australia.
After the overview, the next five sections of Chapter 3 (Sections B to F) give an overview of everybody's rights…
Welcome to the PDF version of the Mental Health Rights Manual (MHRM).
This is exactly the same manual that you will find online at http://manual.mhcc.org.au/ , however it is all in one place in order for you to conveniently
download and print.
If you have not used PDFs before, they are a simple way to view content as it was intended to be read as a document, rather than as a web page. You can
however use it without printing, and below are some hints and tips how to find information quickly and easily in the document.
If you don’t see the index on the left hand side (screen only, not when printed) – then you need to press the button shown below, which is located to the far
left of your screen, near the top:
This toggles between showing and hiding the table of contents that allows you to jump quickly to the section you are interested in.
If you want to search for a specific key word or phrase, then simply right-click your mouse button (that’s the right hand mouse button, not the one you use to
Home
The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with
Mental Illness in NSW (3rd Edition) 2011
Every person with a mental illness should have the right to exercise all civil, political, economic, social and cultural rights as recognised in the UN Universal
Declaration of Human Rights.
The Mental Health Coordinating Council presents its online NSW Mental Health Rights Manual (3rd Edition) which extensively builds on the 2004 online
edition and the original manual published in 1995. By incorporating the latest legislative reform and government directives, the new edition ensures ongoing
access to current legal information for anyone in contact with the mental health sector.
Written in plain language, the manual is an invaluable readily accessible resource, bringing together vital information crucial to anyone having to navigate the
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Foreword
The NSW Mental Health Rights Manual (3rd edition) is a greatly expanded 'new look' online guide to the legal and human rights for people with a mental illness in NSW. This edition incorporates the latest legislative reform and government directives, and will ensure ongoing access to current legal information
for anyone in contact with the mental health and criminal justice systems. Written in plain language, this edition is an invaluable readily accessible resource,
bringing together vital information crucial to anyone who has to navigate the complex terrain, enabling them to become acquainted with their rights, the legal
and service systems, find out where they can access support, information and guidance for themselves or those that they wish to assist.
Whilst there is a plethora of specific information available, there is no other resource that covers a broad spectrum of topics as well as explaining the
interface between the legal and service systems as they interact in NSW. The 3rd edition speaks to a diverse mental health community, and has been developed specifically for people with a mental illness, their carers and significant others and non-legal community service providers in NSW.
The partnership between the Mental Health Coordinating Council (MHCC) and the Public Interest Advocacy Centre (PIAC) in producing this Manual has
been a very positive and fruitful one both organisations bringing distinct perspectives and expertise to the project. Consultations with consumers and carers have provided invaluable direction for the Manual's contents as has the engagement of advocates and key organisations operating in the mental health and
legal sectors. Keeping the Manual user-friendly has been a particular focus of all involved ensuring as much as possible that it is accessible as well as
comprehensive.
I commend the NSW Mental Health Rights Manual to you on behalf of MHCC.
Jenna Bateman
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Publication information
The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with Mental Illness in NSW (3rd Edition) 2011
Published by the Mental Health Coordinating Council Inc
Ground Floor, Broughton Hall
LILYFIELD NSW
(MHCC)
Consultants to the project: Public Interest Advocacy Centre (PIAC), Peter Dodd,Solicitor, Health, Policy and Advocacy, Robin Banks (CEO, PIAC until September 2010), assisted by Ka Ki Ng, PIAC (until March 2011)
Edited by Robin Banks, PIAC (until September, 2010) and Corinne Henderson, MHCC
Prepared as an internet resource by Aventia Consulting
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Acknowledgements
This publication has been produced with the financial assistance of the Law and Justice Foundation of NSW. The Foundation seeks to advance the fairness
and equity of the justice system and to improve access to justice, especially for socially and economically disadvantaged people. Information about the
Foundation can be found at: http://www.lawfoundation.net.au
Disclaimer: any opinions expressed in this publication are those of the authors and do not necessarily reflect the
views of the Law and Justice Foundation's Board of Governors.
The Mental Health Coordinating Council and the Public Interest Advocacy Centre particularly thank consumers and carers who generously consented to be interviewed about their experiences in engaging in the mental health and legal systems. They provided rich personal evidence and
information useful to people with mental illness and carers in a diversity of contexts.
The Mental Health Coordinating Council and the Public Interest Advocacy Centre gratefully thank members of the Mental Health Rights Manual Advisory
Group, who generously gave their time over 18 months to attend meetings and contribute towards the development of this revised and largely reconstructed
online manual:
l Carol Berry, NSW Council for Intellectual Disability
l Elizabeth Barry, Health Care Complaints Commission
l Sharny Chalmers, Public Interest Advocay Centre* l Cherie Carlton, NSW Institute of Psychiatry
l Esther Cho, NSW Guardianship Tribunal
l Peter Dodd, Public Interest Advocacy Centre
l Nihal Danis, Mental Health Advocacy Service, Legal Aid NSW* l Rebecca Doyle, NSW Consumer Advisory Group – Mental Health Inc
l Jonathan Harms, NSW Australian Relatives and Friends of the Mentally Ill
l Corinne Henderson, Mental Health Coordinating Council
l Justin Liebmann, Consumer
l Leslee Murphy, Office of the NSW Trustee and Guardian
l Ka Ki Ng, Public Interest Advocacy Group*
l Karen Oakley, NSW Consumer Advisory Group – Mental Health Inc*
l Francis Rush, NSW Office of the Public Guardian
l Therese Sands, People with Disability Australia
l Jo Shulman, NSW Disability Discrimination Legal Centre
l Associate Professor Meg Smith, University Western Sydney*
l Pam Verrall, Mental Health Association NSW*
* Please note that some members of the Advisory Group have moved onto other positions in other organisations, the details reflect the organisations that they represented whilst the committee met.
The Mental Health Coordinating Council and the Public Interest Advocacy Centre also wish to thank the following contributors who were particularly
generous in sharing their professional knowledge and expertise in relation to specific segments of this Manual:
l Peter Bazzana, NSW Institute of Psychiatry
l Maria Bisgoni, NSW Mental Health Review Tribunal
l Rodney Brabin, NSW Mental Health Review Tribunal l Esther Cho, NSW Guardianship Tribunal
l Nihal Danis, NSW Mental Health Advocacy Service, Legal Aid* l Sarah Hanson, NSW Mental Health Review Tribunal l Jonathan Harms, Australian Relatives and Friends of the Mentally Ill
l The Hon Greg James QC, NSW Mental Health Review Tribunal
l Leslee Murphy, Office of the NSW Trustee and Guardian
l Melanie Oxenham, NSW Office of the Public Guardian
l Christine Paull, NSW Consumer Trader and Tenancy Tribunal
l Francis Rush, NSW Office of the Public Guardian
Thanks also to the Women in Prison Advocacy Network (WIPAN) for the use of some material from their 'Self Help Guide for Women Prisoners'.
MHCC particularly thank Peter Dodd, Solicitor, Health Policy & Advocacy (PIAC) and Robin Banks who until September 2010 was Chief Executive Officer at
PIAC. As consultants to the project they worked on the third edition's new material assisted by Ka Ki Ng, (who was with PIAC until April 2011).
MHCC congratulate PIAC on so successfully presenting complex legal material in such easily understandable language enabling the lay person to approach
the resource effortlessly and find answers to the question at hand, without the need to wade through the entire extensive contents.
Lastly, MHCC particularly thank Corinne Henderson, Senior Policy Officer at MHCC who coordinated this extensive project, chaired the reference group,
conducted consulations broadly across the sector, determined the Manual's final contents and editing.
The many website links available in this manual connect to hundreds of other freely available government and non-government service and information
websites as well as to Australian state and Federal Acts and International Charters. The organisations concerned own the copyright of material on their
Disclaimer
l The legal and other information contained in this Section is up to date to Wednesday, 25 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Copyright information
© The Mental Health Coordinating Council Inc & the Public Interest Advocacy Centre Ltd (Joint copyright © 2011)
This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Mental Health Co-ordinating Council and the Public Interest Advocacy Centre and other referenced contributors.
To reference this Manual please use the following protocol:
Mental Health Coordinating Council. The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with Mental Illness in NSW (3rd edition) 2011. The Mental Health Coordinating Council & the Public Interest Advocacy Centre Ltd (Joint cpyright © 2011). Online resource:
http://mhrm.mhcc.org.au
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Disclaimer and currency
While every effort has been made to ensure the information in this Manual is as up to date and as accurate as possible, the law is complex and constantly
changing. Readers are advised to seek expert advice when faced with specific problems.
This Manual is intended as a guide to the law and should not be used as a substitute for legal or medical advice. The information contained within the
Manual applies to people who live in, or are affected by, the law as it applies in New South Wales on the date stated on each section.
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Background to this edition of the Manual
The first edition of the NSW Mental Health Rights Manual was a project co-ordinated by the Mental Health Coordinating Council (MHCC) in 1995, published by Redfern Legal Centre Publishing with the assistance of the Law and Justice Foundation of NSW. In 2004, again with the support of the Law and Justice Foundation, the second edition of the Manual was developed as an online resource. Late in 2008, MHCC were successful in securing part funding from the Law and Justice Foundation to update, extensively rewrite and redesign the third edition of The Mental Health Rights Manual: A Consumer Guide to the
Legal and Human Rights of People with Mental Illness in NSW (3rd edition) 2011.
The NSW Mental Health Rights Manual (3rd edition) 2011 is a 'living document' and MHCC intends to regularly update its contents to maintain relevance to legislative change, new standards and guidelines and environmental change.
Whilst not designed as a legal resource, when MHCC first contemplated an update of the Manual, it was considered really important to present information with as much legal accuracy as possible, but do so in a form that is easy digestible for anyone interacting with the legal and mental health systems in NSW.
For this reason MHCC invited the Public Interest Advocacy Centre (PIAC) to become consultant to the project.
Peter Dodd, Solicitor, Health Policy & Advocacy (PIAC) and Robin Banks who until September 2010 was Chief Executive Officer at PIAC, were consultants
to the project and worked on the third edition's new material assisted by Ka Ki Ng, Research Officer (who was with PIAC until April 2011).
The manual successfully presents complex legal material in such easily understandable language enabling the lay person to approach the resource effortlessly and find answers to the question at hand, without the need to wade through the entire extensive contents.
Corinne Henderson, Senior Policy Officer, MHCC coordinated this extensive project, chaired the reference group, conducted consulations broadly across the sector, determined the Manual's final contents and editing.
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Terminology and focus
Mental Health Coordinating Council (MHCC) acknowledge the wide range of language and terminology used in the field of mental health and have
endeavoured throughout this Manual to be sensitive to its usage. However, there are sections where specific terms related to legislation need to be used:
for example the 'treatment, care and control' of people under the Mental Health Act 2007 (NSW), may not be a phrase that the MHCC would choose to use
in regards to the principles and standards for Recovery Orientated Practice in mental health services, however, they have a particular meaning in the
context of the Mental Health Act 2007 (NSW).
The purpose of the 3rd edition is to bring together in one resource the package of mechanisms, services and systems available to people with mental
illness, their families, carers and others, including health professionals. It includes the overlapping issues to do with treatment and health care rights,
disability support rights and the participatory and civil rights of people with mental disorders to participate in society as parents, employees, community
members and leaders.
However, whilst MHCC takes a leadership role in promoting legislative reform and policy development in other spheres, this Manual does not seek to
advocate around the law, it merely informs on the status of the law as its stands, presenting realistic ways in which people can exert their rights and meet
their obligations.
MHCC is committed to ongoing communication with government agencies about the efficacy and outcomes of legislation and policies currently in place with
regards to mental health. Its discussions with members and with government are published regularly in policy and position statements and submissions
that are freely available through the Mental Health Coordinating Council's website at: www.mhcc.org.au
To uphold human rights requires more than legislation. It requires that people with mental illness and carers know their rights, and that the professions are
adequately trained in these as well as codes of ethics and practice, standards and quality improvement systems. All such systems need to be supported so
that working cultures in human services support recovery-orientated practice, prioritising the need for people with mental illness to be as involved as much
as possible in decision-making about their care and treatment, as well as being meaningfully involved in the development of policy and service delivery
models. All workplaces need to nurture an inclusive society able to respond to people when they are at their most vulnerable, and provide the opportunities
for people to contribute in the community.
Some people with mental illness may at some stage find themselves in hospital, either voluntarily or involuntarily, and so will come into contact with
treatment orders under the Mental Health Act 2007 (NSW). A simplified overview of the Act is provided so that people dealt with under the Act in the course
of illness may understand their rights and responsibilities and how to maximise their autonomy within the system. However, a more in-depth Guidebook to
the Mental Health Act 2007 (NSW) will be available through NSW Health, the NSW Institute of Psychiatry and the NSW Mental Health Review Tribunal
at a later date on the NSW Mental Health Review Tribunal website at: http://www.mhrt.nsw.gov.au/
When people return to a level of recovery and wellness where they are equal and active partners in their own treatment decision-making, then the rights that
apply to all citizens in obtaining health care also apply to a person with ongoing mental illness. People then simply use mental health services and other
services without being involuntarily treated and where contact with health professionals is in no way coercive.
MHCC aims to contribute to a system of services and advocacy structures in which the status, independence and human rights of people with mental
illness, families and carers is advanced. Its aim is to promote the recovery and return to active participation in the community at all levels of all people with
mental illness.
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 23 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Chapter 1 - Introduction
Part 1 Section A: About this Manual: what the Manual seeks to do and what it is not
This Mental Health Rights Manual (the Manual) is a resource for consumers involved in the NSW mental health system as well as carers of those
consumers. The aim is to provide a guide to key areas of the law and on how to get help. It is written in plain English, free of legal and/or medical jargon. It is
also a useful tool for carers and workers across the mental health and community sector.
In reality we, the authors, also understand that the Manual will often be read and consulted by health workers and lay advocates supporting consumers and
carers, when they are in crisis and seeking urgent help and guidance. In such situations, it is just as important that the information is easy to access, and
written in language that is easily understood.
The Manual is not designed as a guide for lawyers in this area. Many, although not all, of the areas covered by this Manual are also covered by legal texts,
legal practice guides, resources produced by government and the relevant tribunals, all aimed at lawyers, using language that is familiar to those who have
formal legal qualifications. Perhaps, from time to time, lawyers will find the information in the Manual useful, particularly when explaining issues to clients in
plain English. However, lawyers are not the primary audience for which this Manual has been written.
While the Manual is useful for the mental health sector, it is not designed specifically for health professionals. Importantly, if it were drafted for health
professionals, it would contain much more information about occupational health and safety, industrial relations issues, and information about complaints
and disciplinary matters from an employee perspective. There are other sources that health professionals can consult to obtain advice about these matters,
including professional organisations and trade unions.
The existence of the Manual may well provide a useful resource for clinicians and allied health workers in the sense that, hopefully, they can refer
Disclaimer
l The legal and other information contained in this Section is up to date to Monday, 2 May 2011. l This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
Part 1 Section B: How to use this Manual
The Manual covers a broad range of topics in separate sections. Where appropriate the text includes links to other pages in the Manual as well as to other
websites that provide related or more detailed information.
This section of the Manual gives a very brief outline of what each part of the Manual covers. You can use the Index to get an idea of the topics covered and
then click on the particular topic you want to read more about. The Index is always available as a drop-down menu on the left hand side of the section/ page you are on and so you can easily use the Index to go to another part of the Manual by clicking on the entry for that part in the Index.
Each chapter begins with an overview of what is covered. Throughout the Manual, the chapters/ sections include information about where you can get help,
and final chapters 10 and 11B of the Manual have information about legal and advocacy services and supports, how to complain and who to complain to
about particular problems you experience, as well as information on key organisations.
Throughout the Manual there are links to other parts where there is more information about specific issues or processes. You can click on these links at any
time to open different pages. Remember, the Index is always available on your screen so you can easily go back to where you were using the Index or by
using the 'back' arrow on your web browser.
The Manual is designed so that links that take you to other websites should open as a separate browser page so the page of the Manual you were reading
remains open.
For a short summary of what is in each part of the Manual see below.
1B.1: The NSW Mental Health Rights Manual (3rd edition): short summary of contents
Foreword
The Foreword provides a short history of the NSW Mental Health Rights Manual, acknowledges all those involved in developing and authoring its contents,
publishing and copyright details and disclaimers.
Chapter 1 - Introduction
Chapter 1 has three main sections (including this one). These sections introduce you to the Manual and explain what it sets out to do and how to use it.
Chapter 1 also broadly describes the NSW Mental Health system.
Chapter 2 - The legal framework
Chapter 2 has an overview (Section A) then covers three aspects of the legal framework relevant to people with mental illness. These sections give you a
summary of the main laws and standards that are relevant to mental illness in NSW, as well as at a national level and internationally.
Chapter 3 - Health care and treatment
Chapter 3 has an overview (Section A) that includes information on the rights of all those who get health care in Australia that are set out in the Australian
Charter of Healthcare Rights, then deals with seven main aspects of general health care rights in Australia.
After the overview, the next five sections of Chapter 3 (Sections B to F) give an overview of everybody's rights…