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Mental health

Information about mental health facilities, voluntary and involuntary patients, and the Mental Health Review Tribunal.

  • This topic covers

    This topic covers

    • What is a mentally ill person?
    • What is a mentally disordered person?
    • Being detained at a mental health facility
    • Rights for voluntary patients
    • Rights for involuntary patients
    • The Mental Health Review Tribunal

Time limitAction
12 hoursFor a doctor to examine you after you arrive at a mental health facility if you are detained.
As soon as possibleAnother doctor must see you, usually this will be within a few days.
As soon as practicableIf you are found to be a mentally ill person by one or both doctors (at least one psychiatrist), you may be kept in a hospital until a mental health inquiry is held by the Mental Health Review Tribunal. Your case must be brought before the Mental Health Review Tribunal as soon as practicable. This is usually between 10 to 14 days. 
Three monthsHow long the Mental Health Review Tribunal can order for you to be kept in hospital, during the first 12 months that you are an involuntary patient.
Three working daysFor a doctor to detain you if you are mentally disordered person. You can only be detained as a mentally disordered person three times a month.
ImmediatelyYou must be discharged when you no longer meet the test for a mentally ill or mentally disordered person. You may remain at the hospital as a voluntary patient if you agree.
12 monthsThe maximum length of time that a Community Treatment Order (CTO) can be made for. Most CTOs are made for six months.
Three daysFor a hospital to respond to your application to be discharged.

Organisation

OrganisationResponsibilities
Mental Health Review TribunalTo conduct mental health inquiries, make and review orders about treatment, care and detention of people with a mental illness.
Guardianship Division of NCAT

To:

  • make decisions about people who are not capable of making decisions
  • appoint someone to make decisions on their behalf.
Local Court of NSWTo make orders, in some circumstances, about people who are affected by mental illneses or conditions, and their care and treatment.

Legislation

AuthorityCovers

Mental Health Act 2007 (NSW)

Mental Health Regulation 2019 (NSW)

The care and treatment for people who are mentally ill or mentally disordered.

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 (NSW)

The Act deals with:

  • criminal proceedings involving people affected by mental illness or conditions, and their care and treatment
  • the detention, leave and release of forensic patients and correctional patients.
NSW Trustee and Guardian Act 2009 (NSW)The management of the estates of mental health patients.

Common term

Definition

​Assessable person​A person detained in a mental health facility who has not yet been to a mental health inquiry.
​Community Treatment Order​An Order made by the Mental Health Review Tribunal or by a Magistrate that requires you to accept certain treatment, medication and therapy, counselling, management, rehabilitation and other services while living in the community.
​Correctional patient​A person (not a forensic patient) transferred from prison to a mental health facility (usually Long Bay Hospital) usually because they have been found to be a mentally ill person.
​Declared Mental Health Facility

A place allowed to detain and treat mentally ill people. The NSW Government has the power to make orders for places to become a Declared Mental Health Facility.

​These can be: 

  • a mental health emergency assessment class dealing with short term detention for assessment and treatment
  • mental health assessment and inpatient treatment and community, or 
  • health care agency classes which oversee community treatment orders.
​Forensic Community Treatment Order​An Order made by the Mental Health Review Tribunal which can require a person to receive medical treatment including medication, therapy, counselling, management and rehabilitation. It is implemented by Justice Health, a mental health facility or other agency. Most people subject to these Orders are detained in a correctional centre.

​Forensic patient

​A person who is:
  • detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order 
  • the subject of an Extension Order or Interim Extension Order
  • a member of a class of persons prescribed by the regulations.

​Involuntary patient

​A person who:
  • is ordered to be detained as an involuntary patient after a mental health inquiry or other decision by the Tribunal, or 
  • was a forensic patient who is re-classified as an involuntary patient, or 
  • was a correctional patient who is re-classified as an involuntary patient
​Mental Health Inquiry​Tribunal proceedings to determine if a person is a mentally ill person or not.
​Mental Health Review Tribunal​An independent body that oversees the treatment and care of mentally ill people who are involuntarily detained.
​Mentally Disordered Person​Someone whose behaviour is so irrational that there are good reasons for their temporary care, treatment or control, either to protect them or others from serious harm.
​Mentally Ill Person​Someone who is suffering from a mental illness and there are good reasons for believing that care, treatment or control of that person is necessary either to protect them or others from serious harm.

​Mental Illness

​A condition that seriously affects a person’s mental functioning and includes one or more of the following symptoms:
  • delusions
  • hallucinations
  • serious disorder of thought form
  • a severe disturbance of mood,
  • sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to above.
Mental illness can be permanent or temporary.

Voluntary patient

 

A person who has been:
  • admitted voluntarily to a mental health facility, or
  • re-classified as a voluntary patient at any time after detention under Mental Health Act.

OrganisationFee
Mental Health Review Tribunal There are no fees.
Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT)There are no fees in guardianship proceedings.

TypeCosts
Legal CostsYou have to pay your own legal costs if you get a private lawyer to represent you.
Woman working on computer

Frequently Asked Questions

Frequently Asked Questions about mental health law.

Go to questions

Our services

Mental Health Advocacy Service

The Mental Health Advocacy Service (MHAS) is a statewide specialist service of Legal Aid NSW. We provide free legal information, advice and assistance.

More services

NSW Trustee and Guardian

The NSW Trustee and Guardian provides financial management and guardianship services

Last updated:  December 2023