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).

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:

• a review under s37(1)(a) of the Mental Health Act 2007 of their involuntary patient status at the end of the initial period of detention following a mental health inquiry, or
• a review of their involuntary patient status under s37(1)(b) of the Mental Health Act 2007,
• a review of their involuntary patient status under s37(1)(c) of the Mental Health Act 2007,
• an electroconvulsive therapy administration inquiry under s.94 of the Mental Health Act 2007, or
• an application by an Authorised Medical Officer for a Community Treatment Order, or
• a review under s63 (1) of the Mental Health Act 2007, following a breach of Community Treatment Order, or
• the making of an order under s46 of the NSW Trustee and Guardian Act 2009 (NSW)

6.15.4 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).

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.5 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).

6.15.6 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:

• against the decision of an Authorised Medical Officer not to discharge them from a mental health facility.

6.15.7 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:

• against the decision of an Authorised Medical Officer not to discharge them from a mental health facility.

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.8 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.

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.9 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.

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.10 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.

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.11 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.

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.12 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

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

6.15.13 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.

6.15.14 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.

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and
• the Merit Test

6.15.15 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:

• an order made by the Mental Health Review Tribunal or an order by a magistrate under the NSW Trustee and Guardian Act 2009.

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and
• the Merit Test

6.15.16 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.

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and
• the Merit Test

6.15.17 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 and Cognitive Impairment Forensic Provisions Act 2020 and the Mental Health Act 2007 (NSW).

6.15.18 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 and Cognitive Impairment Forensic Provisions Act 2020.

6.15.19 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 and Cognitive Impairment Forensic Provisions Act 2020.

6.15.20 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.

To be eligible for legal aid the applicant must satisfy:

• the Merit Test

Date last published: 05/12/2022