Principles, legislation and rights

The evidence to support the guidelines in this quality of life section on legal issues has primarily been drawn from identifying and reviewing the published research and consulting with key stakeholders. However, it is also necessary to consider legal and ethical requirements for the treatment and care of people with a mental illness.

Legal and Human Rights

Australia does not have a single source such as a 'Bill of Rights' designed to ensure civil and human rights are recognised by law. Rather, rights are identified in Australia through various sources including:

  • laws developed through the court system (common laws);
  • legislation enforced by the imposition of statutory penalties (such as the Australian Commonwealth Human Rights and Equal Opportunities Act, 1996); and
  • Australia being a signatory to a number of important United Nations international conventions which deal with human rights.
    (Spender 1995)

The best resource for people with a mental illness and their friends and relatives is the "Mental Health Act Guide Book" which is published by the NSW Institute of Psychiatry and can also now be downloaded on line through the NSW Department of Health.

The United Nations Declaration on the Rights of Disabled Persons 1975

This declaration recognises numerous rights for people with disabilities, including those with a psychiatric disability. The Declaration states that people with disability are entitled to respect for human dignity, the right to legal safeguards, economic security, the right to productive employment and importantly, the right to any necessary treatment, rehabilitation, education, training and other services to help develop their skills and capabilities to the maximum.

In 1991, the United Nations General Assembly adopted the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. These have not been formally incorporated into Australian legislation but were endorsed by the ministers for health in the National Mental Health Policy (1992). These principles focus on:

  • standards of care;
  • the least restrictive alternative;
  • the right to mental health care when necessary;
  • requirements for informed consent;
  • the right to live and work in the community;
  • the same standard of care as the rest of the health system; and
  • protection from abuse, exploitation and degrading treatment.

In Australia, there are several Commonwealth Acts which state the legal rights of people with a disability, such as the Disability Discrimination Act, 1992 and the Disability Services Act, 1992.

Declaration of Human Rights and Mental Health 1989

The World Federation for Mental Health published this declaration in 1989. It covers:

  • mental health promotion and prevention;
  • co-operation between intergovernment, government and non-government agencies;
  • the right for a person with a mental illness to have the same standards of health care as those for any other citizen
  • freedom from discrimination; and
  • recognition of particular vulnerable groups of people with mental illness.

The NSW Mental Health Act 1990

The NSW Mental Health Act 1990 (as amended) provides principles that have a legal basis and are binding. Sections of the Mental Health Act that are most relevant to people with schizophrenia and their families are outlined below.

Basic rights under the NSW Mental Health Act

Sections 4(2) (a) and (b) requires that persons with a mental illness be treated in the least restrictive environment for that treatment to be effectively given, and that any restriction or interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.

In Section 6(2) it is required that persons with a mental illness be informed of their legal rights and other entitlements under the Act, and that reasonable steps be taken to ensure that all relevant parts of the Act are explained in the language, mode of communication or terms that they are most likely to understand.

Involuntary admission to hospital

Sections 20 to 37A covers involuntary admission to hospital. Involuntary admissions (by scheduling) are applied only when other, less restrictive care (e.g. Community Counselling Order) is inappropriate or unavailable. Provision is made for six types of schedule:

  • S23 Health or care agency, e.g. crisis team, on request of a relative or friend
  • S21 General Practitioner (valid for five days)
  • S25 Court order
  • S26 Welfare order
  • S27 Following order by magistrate

Regulations governing scheduling define the exact procedure and safeguards to be followed. When necessary, police will attend. The person must be examined within twelve hours of arrival at hospital, with a second examination as soon as possible. Before certifying a person mentally ill, he or she must be informed of their legal rights. In case of disagreement, a psychiatrist must make a third examination.

Unless the person decides to sign in as a voluntary patient (if given the option), a magistrates hearing must take place within ten days. The magistrates' hearing is regulated by safeguards to protect people with mental illness. They are also entitled to free legal representation and, if instructed on their behalf, the lawyer will argue to have them discharged.

Official Visitors

Sections 226 - 243 provides for the appointment of Official Visitors who have the power to inspect psychiatric services. Any patient has the right to talk with the Official Visitors in confidence. This Act also establishes the Mental Health Review Tribunal which has the role of reviewing a patient's status and need to remain in hospital.

The Mental Health Statement of Rights & Responsibilities

This statement was endorsed at the Australian Health Ministers' Conference in March 1991. It asserts that consumers have the right to:

  • respect for individual human worth, dignity and privacy;
  • appropriate and comprehensive information, education and training about their mental health disorder, treatment and services available to meet their needs;
  • interact with health care providers, particularly in decision making regarding treatment, care and rehabilitation;
  • mechanisms of complaint and redress;
  • refuse treatment (unless subject to mental health legislation);
  • advocacy;
  • have their cultural background and gender taken into consideration in the provision of mental health services; and
  • contribute and participate as far as possible in the development of mental health policy, provision of mental health care and representation of mental health consumer interests.

A Charter for Mental Health Care in NSW has also been developed (NSW Health Department 1998) which consolidates these rights.

Guardianship and Financial Management

The Guardianship Board is a legal tribunal with the power to appoint guardians and financial managers for people 16 years and over who are unable to make decisions for themselves because of a disability, including a psychiatric disability. A guardian makes important personal decisions, such as where a person should live and decisions about health care and services. A financial manager administers a person's money and property. The board may also give consent to certain medical and dental procedures for people who are incapable of consenting for themselves.

Making an application to the Guardianship Board

Anyone with a genuine concern for the welfare of the person can make an application to the Guardianship Board. An application to the Guardianship Board will only become necessary if a person has a disability which limits her or his capacity to make important decisions, and this is causing problems which cannot be resolved without a legally appointed decision maker.

An order cannot be made if the person is capable, or not in need of such an order. The subject of the application can apply for legal aid. Any party to the proceedings has the right of appeal against any decision made by the Guardianship Tribunal.

Other rights relevant to people with a mental illness

The Right to complain

Consumers and carers have the right to complain and to have their complaints investigated. Complaints can be directed to the NSW Health Care Complaints Commission, the NSW Ombudsman, or relevant anti-discrimination bodies depending on the nature of the complaint. In December 2002, the Community Services Commission was merged with the NSW Ombudsman.

The Health Care Complaints Commission can investigate:

  • disputes between health service providers and clients;
  • questions as to the adequacy of care received by a client;
  • the misconduct of health professionals, including sexual misconduct and assault;
  • incorrect, wrong and negligent treatment.

The NSW Ombudsman can investigate conduct that may be:

  • illegal;
  • unreasonable, unjust or oppressive;
  • improperly discriminatory;
  • based on improper motives or irrelevant grounds;
  • based on a mistake of law or fact.

Both the NSW Anti-Discrimination Act and the Commonwealth Disability Discrimination Act provide protection from discrimination for people with schizophrenia. In addition, the NSW Community Services Commission has been established to deal with complaints regarding services operated or funded by the NSW Department of Community Services.

Right to information

Under the NSW Freedom of Information Act, a person has the right to request information which relates to them or that relates to government policy or processes. There are fees associated with requests for information and there are things that cannot be seen. Indeed it is possible for an agency to refuse to give the requested information, but there is a right of appeal.

Generally, a person has the right to seek information concerning themselves. If they feel any information is inaccurate, incomplete or out of date, a correction can be requested.

General rights

Each citizen, including those who have a mental illness, has access to a number of other rights. All people have tenancy rights and the right to not be abused, unfairly treated or mistreated. Every citizen has the right to security of income, and the right to challenge decisions regarding government income support. For further information on general rights see the Mental health rights manual (Spender 1995).

It is so important to know your rights, whether you are someone who has a mental illness, whether you are a carer or a health professional. The best resource for legal information is the austlii web site (Australian Legal Information Institute), which lists every act or regulation made for each state, as well as for the Commonwealth. It is well worth a visit and it is free to access any information from this site.


Spender, L. (Ed.) (1995)Mental health rights manual: A guide to the legal and human rights of people with a mental illness in NSW. Sydney: Redfern Legal Centre Publishing

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