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Contents (2007 - 8)
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Mental Health Act 2007 No 8
Current version for 28 November 2018 to date (accessed 6 December 2019 at 17:19)
Schedule 3
Schedule 3 Statement of rights for persons detained in mental health facility
(Section 74 (3))
Statement of rights
Your rights
You should read the questions and answers below to find out your rights and what may happen to you after you are brought to a mental health facility.
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.
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. The doctor will decide whether or not you are a mentally ill person or 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 his or her own protection or to protect other people. 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 or to protect other people.
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 3 DAYS (weekends and public holidays are not counted in this time). During this time you must be seen by a doctor at least once every 24 hours. You cannot be detained as a mentally disordered person more than 3 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.
How can I get out of a mental health facility?
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.
Can I be treated against my will?
The facility staff may give you appropriate medical treatment, 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.
You may be operated on if a person who is your designated carer and the Secretary of the Ministry of Health agree if you do not consent to the operation, but only if 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.
More information
You should read the questions and answers below to find out about mental health inquiries and when you may be kept in a mental health facility against your will after an inquiry.
When is a mental health inquiry held?
A mental health inquiry must be held as soon as practicable after it is decided to keep you in a mental health facility against your will because you are a mentally ill person.
What happens at a mental health inquiry?
Mental Health Review Tribunal will decide whether or not you are a mentally ill person.
If Mental Health Review Tribunal decides that you are not a mentally ill person, you must be let out of the mental health facility.
If Mental Health Review Tribunal decides that you are a mentally ill person, 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. Mental Health Review Tribunal may order that you be kept in a mental health facility as an INVOLUNTARY PATIENT for a set time (not more than 3 months) or Mental Health Review Tribunal may order that you be let out of the mental health facility. If you are let out, Mental Health Review Tribunal may make a community treatment order requiring you to have certain treatment after you are let out.
Mental Health Review Tribunal may adjourn the inquiry for up to 14 days where it considers that it is in your best interests.
If Mental Health Review Tribunal makes an order that you are to remain in a mental health facility as an involuntary patient, Mental Health Review Tribunal must also consider whether you are capable of managing your financial affairs. If 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 can tell Mental Health Review Tribunal what you want or have your lawyer tell Mental Health Review Tribunal what you want. 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 apply to see your medical records.
What are my rights of appeal if I have been made an involuntary patient?
You (or a carer or friend or relative) may at any time ask the medical superintendent or another authorised medical officer to discharge you. If the medical superintendent or authorised medical officer refuses or does not respond to your request within 3 working days you (or a carer or 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 the Mental Health Advocacy Service for help. The Mental Health Advocacy Service telephone number is: ............................................................
(Note.
 
Appropriate telephone numbers should be included.)
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 act for me?
You may nominate up to 2 people to be your designated carers, including a person who is also your principal care provider, while you are in a mental health facility. 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.