A Mental Health Act for the 21st Century

The submission responds to the issues raised in the Discussion Paper: Issues arising under the Mental Health Act 2007 (NSW) (‘the MHA’).

The submission maintains that legislative review process of the MHA should take place with close reference to the human rights that are required to be afforded to people with mental illness and, in particular, to the framework of the Convention on the Rights of Persons with Disability (CRPD).

In Parts 1-5, the submission addresses in detail a number of issues that are raised by the Discussion Paper. In Part 6, PIAC responds to a number of the specific questions posed by the Discussion Paper. These relate to the need for the MHA to recognise Advance Directives, the need for Community Treatment Orders (CTOs) to reflect the principles set out in the CRPD and the need for the process of involuntary treatment and detention in hospital to be modified to recognise the principles set out in the CRPD, including the necessity for supported decision making, as well as applying the principle of least restriction which is an existing consideration in the MHA.

A key recommendation in the submission is that the MHA should be restructured with a separate section setting out the principles for care of all mental health patients in NSW focussing on supported decision making in mental health care. 

Another key recommendation is that there should be should be a separate part of the legislation, providing that involuntary detention and treatment are last resorts that can only be considered when:

• attempts at involving a person in decision making about their care have failed;

• the person lacks capacity to make their own decisions about their care and treatment; 

• hospitalisation in a closed environment and coercive care are justified on risk of harm criteria; and 

• there are no alternative options to detention and coercive care of a less restrictive kind.