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6. Civil law matters - when legal aid is available

6.15. Mental health matters

6.15.1 Types of mental health matters

Legal aid is available for the following matters under the Mental Health Act 2007 (NSW)

Note: Under 154(4) of the Mental Health Act 2007, a person who is under the age of 16 years who has a matter before the Tribunal must be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice, unless the Tribunal decides that it is in the best interests of the person to proceed without the person being so represented.

6.15.2 Mental Health Inquiry before the Mental Health Review Tribunal

Legal aid is available to an assessable person appearing in a mental health inquiry or in an electroconvulsive therapy administration inquiry under the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.3 Involuntary patients before the Mental Health Review Tribunal

Legal aid is available to an involuntary patient who is appearing before the Mental Health Review Tribunal for:

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.4 Further review of an involuntary patient before the Mental Health Review Tribunal

Legal aid is available to an involuntary patient who is appearing before the Mental Health Review Tribunal under s37(1)(c) of the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.5 Applications for renewal of a Community Treatment Order

Legal aid is available for representation before the Mental Health Review Tribunal to a person who is the subject of a renewal of a Community Treatment Order (CTO) being made by a Director of a health care agency under s51(4) of the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following tests must be satisfied:

6.15.6 Community Treatment Order application made from the community

Legal aid is available for representation before the Mental Health Review Tribunal to a person who is neither a patient nor subject to a Community Treatment Order (CTO) and who is the subject of a CTO application under s51(3) of the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following tests must be satisfied:

6.15.7 Appeals to the Mental Health Review Tribunal – assessable person

Legal aid is available to an assessable person to appeal to the Mental Health Review Tribunal:

For legal aid to be granted in these appeal matters the following test must be satisfied:

6.15.8 Appeals to the Mental Health Review Tribunal – involuntary patients

Legal aid is available to an involuntary patient to appeal to the Mental Health Review Tribunal:

For legal aid to be granted in these appeal matters the following test must be satisfied:

6.15.9 Appeals against Community Treatment Orders

Legal aid is available to an assessable person or involuntary patient to appeal to the Mental Health Review Tribunal:

  • Against a community treatment order.

For legal aid to be granted in these appeal matters the following tests must be satisfied:

6.15.10 Appeals to the Supreme Court

Legal aid is available to an assessable person, an involuntary patient, a correctional or a forensic patient for an appeal to the Supreme Court against:

  • a decision concerning continued detention in hospital, or
  • a decision of the Mental Health Review Tribunal.

For legal aid to be granted in these appeal matters the following tests must be satisfied:

6.15.11 Application to revoke an order under NSW Trustee and Guardian Act 2009

Legal aid is available to revoke an order under the NSW Trustee and Guardian Act 2009 (NSW) following the applicant's discharge from hospital. The application is made to the Mental Health Review Tribunal.

For legal aid to be granted in these matters the following tests must be satisfied:

6.15.12 Appeals against orders under the NSW Trustee and Guardian Act

Legal aid is available to an involuntary patient or a person who is the subject of an order under the NSW Trustee and Guardian Act 2009, for an appeal to the Administrative and Equal Opportunity Division of NCAT or the Supreme Court:

  • against an order made by the Mental Health Review Tribunal or a magistrate under the NSW Trustee and Guardian Act (NSW), or
  • for an application under s86 of the NSW Trustee and Guardian Act 2009 seeking a declaration and order from the Supreme Court.

For legal aid to be granted in these appeal matters the following tests must be satisfied:

6.15.13 Review of a decision of the NSW Trustee

Legal aid is available to a person who is the subject of an order under the NSW Trustee and Guardian Act 2009 for an appeal to the Administrative and Equal Opportunity Division of NCAT for:

  • a review of a decision of the NSW Trustee

For legal aid to be granted in these appeal matters the following tests must be satisfied:

6.15.14 Review of a decision of the Public Guardian

Legal aid is available to the person to whom the decision relates for an application to the Administrative and Equal Opportunity Division of NCAT for a review of a decision of the Public Guardian.

For legal aid to be granted in these appeal matters the following tests must be satisfied:

6.15.15 Appeal by a designated carer or principal care provider against a continuing detention order

Legal aid is available to a designated carer or principal care provider to appear at the Mental Health Review Tribunal in relation to an appeal against a continuing detention order.

For legal aid to be granted in these matters the following tests must be satisfied:

6.15.16 Appeal by a designated carer or principal care provider against an order under the NSW Trustee and Guardian Act

Legal aid is available to a designated carer or principal care provider to appeal to the Administrative and Equal Opportunity Divison of NCAT or Supreme Court against:

For legal aid to be granted in these matters the following tests must be satisfied:

6.15.17 Review of a decision of the NSW Trustee or Public Guardian by primary carer

Legal aid is available to an affected person for an appeal to the Administrative and Equal Opportunity Division of NCAT for a review of:

  • a decision of the NSW Trustee; or
  • a decision of the Public Guardian.

For legal aid to be granted in these matters the following tests must be satisfied:


6.15.18 Forensic patients before Mental Health Review Tribunal

Legal aid is available to forensic patients and correctional patients who are appearing before the Mental Health Review Tribunal under the Mental Health (Forensic Provisions) Act 1990 (NSW) and the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.19 Matters under the Mental Health (Forensic Provisions) Act

Legal aid is available to applicants who have been charged with a criminal offence and are being dealt with under the Mental Health (Forensic Provisions) Act 1990 (NSW).

For legal aid to be granted in these types of matters the following test needs to be satisfied:

6.15.20 Applications to the Supreme Court to extend a person's status as a forensic patient

Legal aid is available to a person who is the subject of an application to extend or vary their status as a forensic patient under the Mental Health (Forensic Provisions) Act 1990 (NSW).

For legal aid to be granted in these types of matters the following test needs to be satisfied:

6.15.21 Appeals to the Court of Appeal against a decision to extend a person's status as a forensic patient

Legal aid is available to a person who is appealing against an Order by the Supreme Court to extend or vary that person's status as a forensic patient.

For legal aid to be granted in these types of matters the following tests need to be satisfied:

Date last published: 25/02/2019