New Mental Health Bill Useless

The Sydney Morning Herald article dated 7 November 2014 criticises the Mental Health Bill. The Bill comes before the NSW Legislative Council the week of 10 November. It needs to be stopped and amended.

Our analysis of the Bill is underneath the Sydney Morning Herald article. 

Act now! Contact the Minister Jai Rowell (02) 8574 7100 

And shadow minister Barbara Perry (02) 9644 6972

Greens MP John Kaye says NSW mental health law changes only cosmetic

November 7, 2014 – 12:15AM

Amy Corderoy

Health Editor, Sydney Morning Herald

Fearing another tragedy: Greens MP John Kaye. Photo: Andy Zakeli

Doctors and carers say an overhaul of the mental health act in NSW has been wasted, with laws that violate the rights of patients to remain in place.

A bill currently before Parliament makes only cosmetic changes, despite moves overseas and throughout Australia to radically change involuntary treatment and abandon the idea that people should be assessed primarily on the risk they pose to the community, Greens MP John Kaye said.

He feared another a tragedy could occur, such as when Sydney man Anthony Waterlow killed his father and sister after he was not given involuntary treatment.

Not given involuntary treatment: Anthony Waterlow. Photo: Supplied

However, the government says the risk assessment model has broad support among academics and carer groups. 

Christopher Ryan, a psychiatrist at the University of Sydney’s centre for values, ethics and the law in medicine, said the bill contained some good changes but was “quite disappointing”.

“Mentally ill people who understand the information about being treated, and come to a decision not to have treatment, can still have treatment forced on them if they are deemed at risk,” he said. “Imagine if an oncologist was allowed to force chemotherapy on a patient.

“We could be looking at the best part of a decade before NSW comes into line with other parts of Australia.”

There were more than 5400 orders for involuntary treatment made in NSW in 2012 to 2013, according the Mental Health Review Tribunal.

People can be treated involuntarily if they are identified during a medical assessment as posing a risk to themselves or the community. However, the risk assessments are notoriously unreliable.

Western Australia, Victoria, Tasmania and South Australia have all changed or are in the process of changing their laws to add assessments of a person’s capacity to agree to treatment.

The chief executive of Mental Health Carers ARAFMI NSW, Jonathan Harms, said while there had been extensive consultation on the act, many of the changes that needed to be made would have cost a lot of money.

“Mental health resources in NSW need to double in size, and until then we are not going to get the system we deserve,” he said.

Sascha Callaghan, also from the centre for values and ethics in the law at the University of Sydney, said under the UN Convention of the Rights of People with Disabilities, Australia was obliged to move towards a system that better respected people’s rights.

“An opportunity to modernise laws that have been in place since the 1880s has been missed,” Dr Callaghan said. “It does violate the rights of people with a mental illness because it still treats them on an unequal basis.

“People often experience the system as being debasing and violative.”

Dr Kaye said: “Mentally ill people will see very little change to their ability to receive treatment or their rights to have a say in how they are medicated.”

“Nothing has been done to address the failure of the legislated processes that resulted in the Waterlow tragedy.”

But Mental Health Minister Jai Rowell said the “vast majority” of academics, carer groups and patients supported the risk assessment model.

“In some cases, the risk to the person and/or the wider community outweighs the patient’s consent,” he said.

He said the changes were consistent with Australia’s UN obligations, as the legislation says consent to treatment should be sought wherever possible.

“In instances where it is not possible for the consumer to provide consent, nor be supported to provide consent, decisions regarding treatment may still be made after considering the views and preferences of the consumer,” Mr Rowell said.

Justice Action Analysis on the Mental Health Amendment (Statutory Review) Bill 2014

*     The issue of the status of consumer workers has become very important. We understand that NSW Health funding of the NSW Consumer Worker Committee is not secure. That is in the face of the National Mental Health Commission statement at the bottom of their page:

We now need to build upon the evidence and this momentum with some real action. The Commission calls upon all governments to together develop a National Mental Health Peer Workforce Development Framework and include peer work approaches as a key performance indicator for service contracts and programs.

We also endorse the call for a national target for peer workers in mental healthrelated support services. This target aims for 50 per cent of services employing peer workers in four years and 100 per cent in ten years. These actions will help to improve outcomes, and employment rates of people with mental illness and their families and supporters.

 Recovery has been adopted as a term in the Bill, but is totally ineffective as consumers are given no new power to choose their treatment.

·      *  The absence of choice of legal representation and effective advocacy before the Mental Health Review Tribunal

·      *  The absence of any consideration of the NSW Law Reform Commission recommendation to implement limiting terms for persons considered not guilty by mental illness in the Mental Health (Forensic Provisions) Act 1990 (NSW) despite the Commission’s  declaration that it was unfair. 

Statutory Review of the Mental Health Act 2007 (NSW): Shortcomings of the Mental Health Amendment (Statutory Review) Bill 2014  


Justice Action is reviewing the Mental Health Amendment (Statutory Review) Bill 2014 (the Bill) in consultation with some consumers and carers. The significant shortcomings in the Bill reveals the need for further consultation to implement the effective, positive and substantive changes required for the MHA to implement a best practice framework for mental health in NSW. The Mental Health Amendment (Statutory Review) Bill 2014 was debated on 22 October 2014 and will go before the Legislative Council next month. This paper presents an analysis of the proposed amendments and advocates for need to address the significant shortcomings in the current Bill. As a result. Justice Action proposes urgent consultation on the need for further amendments to effectively promote recovery focused treatment in the Mental Health Act 2007 (NSW) (‘MHA’).

The MHA requires a statutory review of the Act to be conducted after five years to determine whether the policy objectives of the MHA remain valid and provide an appropriate legislative framework for the NSW mental health system. As part of the statutory review, NSW Health released a Discussion Paper, sought submissions from and consulted with various stakeholders including an Expert Reporting Group. NSW Health then provided a Report to Parliament that informed the creation of the Bill.

The Bill was introduced in compliance with 201 (Review of Act) of the MHA.[1] In his second reading speech, the Hon. Jai Rowell cited the overarching purpose of the bill was to (inter alia) ‘align [the Act] with best practice in mental health,’[2] and to reflect the view of the community that there needs to be ‘increased acknowledgment of recovery focused treatment.’[3] 

The shortcomings of the current Bill include:

·      *  An unwillingness to implement substantive positive changes to improve consumer choice and decision-making despite emphasis on ‘recovery’

·      *  The absence of choice of legal representation and effective advocacy before the Mental Health Review Tribunal

·      *  The absence of any reference to Consumer Workers in the MHA despite their growing importance within the mental health system

·      *  The absence of any consideration of the NSW Law Reform Commission recommendation to implement limiting terms for persons considered not guilty by mental illness in the Mental Health (Forensic Provisions) Act 1990 (NSW) in order to uphold the over-arching principles of treatment of persons with mental illness as contained in the MHA s68

1 The Absence of Consumer Choice

NSW Health stated that much of the focus of the Mental Health Act 2007 (‘MHA’) Review ‘has been on the terms and conditions of involuntary patient care, compulsory treatment and the oversight and accountability imposed on the use of such coercive measures’.[4] It also stated that the MHA review would have a ‘renewed focus on empowering consumers and ensuring appropriate information sharing with carers [to ensure that] that a person receives care for their mental illness in an environment that respects their rights and wishes as far as possible’.[5]

Initially, we must note that it is of great concern that, as NSW Health stated, ‘people who are currently detained under provisions in the MHA may find it difficult to respond to the call for public submissions’.[6] The only input sought from current inpatients was in the form of a ‘short survey’ form, developed by NSW Health and provided to ‘sample inpatients (including forensic patients)’. Moreover, it was noted that despite follow up with local staff, only a small number of survey responses were collected or received.[7] There is an obvious need for consultation with current inpatients, as stakeholders that represent consumers and whose rights are directly affected by the function of the MHA. As a result, the failure of NSW Health to properly consult with current inpatients, particularly involuntary or forensic patients, clearly contradicts the purpose stated in the review of ‘empowering consumers’.

The MHA Review Discussion Paper references Article 12 of the Convention on the Rights of Persons with Disabilities, whichrecognises the ‘legal capacity of persons with disabilities, including mental illnesses, are capable of making their own decisions and that any other form of decision making must be seen as a measure of last resort, and shift the focus from substituted decision making to supported decision making’.[8] The importance of such rights are reinforced by NSW Health’s statement that ‘coercive or involuntary treatment should only be used as a last resort, and wherever possible, a person should retain the right to make informed decisions about their own lives, including their healthcare’.[9] However, NSW Health recognises that the MHA ‘arguably fails to properly recognise or provide guidance as to the rights of an individual to participate in making decisions on their general medical treatment when they have the capacity to make such decisions and apply their decision making into the future’.[10]

The MHA,in its current form, ‘does not even require that the Director General (Secretary) or the MHRT to consider the views of the patient before deciding whether or not to consent to treatment, including surgery, as would be the case if substituted consent was given’.[11] NSW Health recognises that this represents an ‘out-dated understanding of mental illness’.[12]  According to the MHA Guide Book (4th ed), the consumer does not have the right to refuse appropriately prescribed treatment, although ‘they have the right to express their objection’.[13] The ‘number of avenues’ consumers can pursue if they are ‘unhappy’ with medication/treatment or the response from their service provider, are limited to contacting Official Visitors or contacting the NSW Health Care Complaints Commission.[14]

As a result, the NSW Health discussion paper raised the possibility of the introduction of a mechanism for consumers to apply to the MHRT for review of treatment/change in medication, or the possibility to seek a second opinion from an independent psychiatrist. Although this is discussed as a possibility that would require ‘careful management’, ‘clear guidelines’ and an assessment into ‘availability of funding and resources’. One possible option ‘which is not excluded under the MHA’ would be to allow the consumer to request that the Medical Superintendent undertake a treatment review, or another psychiatrist in the facility in cases where the Medical Superintendent is the treating psychiatrist.[15] 

Despite the issues raised by the discussion paper that need review, and the claims that such a review would focus on the possibility to improve consumer choice and decision-making, the Report presented to the Parliament and the Mental Health Amendment (Statutory Review) Bill 2014 falls far short of realising the aims stated in the Discussion Paper despite wide-ranging support from stakeholders on numerous issues.

Thirty-four submissions on the MHA Statutory Review discussed the possibility of making amendments that would embed into the Act, a presumption of decision-making capacity and a supported decision-making model for persons with mental illness.[16] These submissions included 5 Medical Associations, Colleges and Committees, 4 LHDS and associated specialty networks, 4 government departments, NGOs, carer and consumer groups, academics, legal aid, MHRT and OVs.[17] However, despite the purported ‘importance’ of these issues, no specific advice was sought from the Expert Reporting Group and therefore they did not provide any advice or comment in relation to the specific issue.[18]

There was widespread support amongst respondents for a legislated formal mechanism for review of treatment and medication, and general agreement of the Expert Reporting Group that a psychiatrist not involved in patient care should conduct reviews of medication and treatment, on the grounds that such a change would be beneficial in that it would lift clinical practice.[19] Similarly, submissions also generally supported the proposal of formalising, in legislation, development and management of treatment plans that enshrine the consumer’s rights to exercise choice and direct treatment.[20] The Expert Reporting Group only went so far as to recognise such a discussion as a key issue when making decisions.[21]

Unfortunately, the NSW Health Report conclusion was that that, with regard to the issues surrounding decision making capacity and important decision-making, review of treatment planning and medication and consumer engagement in the development of treatment plans, it may be appropriate for further consultation to take place’.[22] As a result, no positive substantial changes have been included in the Mental Health Amendment (Statutory Review) Bill 2014 with regard to consumer choice and decision-making.

The Amendments of s68 to add the additional principle of care and treatment only require that; every reasonable practical effort should be made to obtain the individual’s consent to treatment and recovery plan, and that capacity of individuals to consent to treatment should be monitored. It is of grave concern that despite the ‘importance’ of such principles, that these actions are not mandatory. Moreover, no substantive changes have been made to further realise theseTherefore, in light of NSW Health’s own consideration of the issues, the MHA remains ‘out-dated’ and fails to conform to Article 12 of the Convention on the Rights of Persons with Disabilities by facilitating consumer participation in decision-making with regard to treatment or medication.

Coercion and Absence of Consumer Choice

Justice Action is concerned with the option considered by the Opposition, expressed by Mrs Barbara Perry on 22 October 2014 during the Second Reading debate on the Mental Health Amendment (Statutory Review) Bill 2014, that the implementation of the Act can be realised through Regulations.[23] The Mental Health Regulations 2013 (NSW) (the Regulations) span only 50 sections, whilst the MHA comprises of over 200 provisions.

The brevity of the Regulations demonstrates that the government does not rely upon Regulations implementing substantive mental health policy or functions of the MHA, in any meaningful way. Relying on the Government to address the shortcomings in the Mental Health Amendment (Statutory Review) Bill 2014 through changes to the relevant Regulations is misguided. Furthermore, there would be no opportunity for debate and review of possible implementation strategies to occur in both houses of parliament.

As a result, the Bill as it currently stands, is plagued by shortcomings and fails to actually provide for greater consumer choice or decision-making, despite the concerns expressed by NSW Health with regard to the MHA. This absence of any substantive changes continues to perpetuate a reliance on coercion within the Mental Health system. In light of this, Justice Action noted, with concern, Mrs Perry’s statement that the Bill ‘does not have measures around seclusion and restraint, which are ongoing controversial issues in the mental health community’.[24] Despite the gravity of the issue of seclusion and restraint issue within mental health, any such consideration is wholly neglected in the statutory review. This is symptomatic of the Government’s failure to address issues of serious concern within mental health and the subsequent failure to provide substantive amendments or reforms in the areas of consumer consent, choice and decision-making, which are central to the principle of recovery.

2. Legal Support

The section 152 amendment providing for legal representation of individuals under 16, when they are subject to a Mental Health Review Tribunal hearing, is an important step. However, there is a serious issue with regard to the limited choice of legal representatives available. The lawyers available are assigned by the Mental Health Advocacy Service, which perceive themselves as, and are perceived to be, part of the system. Sadly their legal support has in most cases been totally ineffective in protecting consumer rights.

Justice Action has detailed statements to support this stance, which is also evidenced by the Mental Health Advocacy Service’s approach as expressed in their own words. Time and again, over many years, we have asked the service to assist fundamental problems, or to use their experience to redress problems arising under the Act, with almost no success. Many other lawyers are therefore concerned with the quality of advocacy provided by the Mental Health Advocacy Service, to the point of many regarding the service with contempt. Similarly, consumers frequently do not feel as if the service truly advocate for their rights. As a result, they constantly complain to us, reporting that they feel ‘friendless’ even when represented by the Mental Health Advocacy Service.

Consumers must have choice of legal representation from a panel supported by consumer representatives. The NDIS principle must be applied.

3. Entrenching Consumers Workers in the Mental Health Amendment (Statutory Review) Bill (NSW) 2014

The fragility of the role of the consumer workforce in the NSW health system has become a source of concern. The value of a consumer workforce in the provision of mental health services have been recognised in Australia and around the world. Yet, mental health consumers, like Saeed Dezfouli, find it incredibly difficult to access the services of the consumer workforce. The National Mental health Commission framework has stated that 50% of the mental health workforce should be comprised of consumer workers. Therefore, it is essential that the NSW Government continued to support and develop the consumer workforce in NSW.

The review of the MHA presents the necessary opportunity to entrench the consumer workforce in the existing legislative framework for mental health. Justice Action suggests that additional provisions should be drafted within Chapter 5, Par 2 of the MHA. For example, a provision could be drafted as following:

114A Consumer Workers

(1)  An –authorised medical officer may appoint a person as the consumer worker of a voluntary patient or an involuntary patient

(2)  A person may not be appointed as a consumer worker unless, in the opinion of the authorised medical officer, the person is suitable to mentor and provide peer support to a voluntary patient or an involuntary patient

The term ‘consumer worker’ would need to be defined in the Definitions section of the MHA.

The Consumer Worker’s Project formulated the Final Consultation Paper Draft Framework for the NSW Health Consumer Workforce.[25] This paper could be used as a guide for the drafting of additional provisions into the MHA

4. Limiting term for NGMI

Justice Action believes that any comprehensive review of the legislative frameworks governing mental health that is ‘recovery’ focused must consider protection of all involuntary patients, including forensic patients. The NSW Law Reform Commission (NSWLRC) report on People with Cognitive and Mental Health Impairments in the Criminal Justice System recognised that the current situation of indefinitie detention was unfair and recommended the introduction of a limiting term for forensic mental health patients detained under the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA) as a result of being found not guilty by reason of mental illness (NGMI).[26]  A limiting term would require a court to consider whether such a person would be sentenced to imprisonment if found guilty at trial and to nominate a limiting term for the forensic patient for release or review.

An introduction of a limiting term would be wholly consistent with the broad principles cited for the amendments reviewing the Mental Health Act 2007 (NSW). We strongly urge the Minister for Mental Health to reconsider introducing such a provision to realise the recovery principle under the MHA or to review the Mental Health (Forensic Provisions) Act 1990 (NSW) in light of the recovery principle introduced in the MHA.[27] This would ensure that the overarching principles which are crucially relevant to the treatment of mental illness enumerated in s68 of the MHA would be applied to the MHFPA.

Currently, under the Mental Health (Forensic Provisions) Act 1990 (NSW) the limiting term approach is only mandated after a finding of ‘unfitness and not acquitted’ at special hearing (UNA).[28] We propose that this be extended to a verdict of NGMI. This would align with the NSW Law Reform Commission’s (NSWLRC) recommendation that the Act be reformed so as to promote consistency between determinations of NGMI and UNA.[29] The NSWLRC asserted that ‘there is no clear reason to retain separate systems [between NGMI and UNA] in relation to time limits’[30] and concerns about community safety could be ameliorated by ‘ongoing treatment and support in the community.’[31] Although in the NSWLRC’s terms of reference, there is no explicit instruction that the Report was completed in response to a pending or forthcoming review of the MHFPA,[32] we strongly believe that the NSW Government should adopt the recommendation.

Law Reform Commission Recommendation 

0.28 A significant consequence of this recommendation is that those found NGMI will no longer be at risk of being detained indefinitely. Because of the potential risk factors associated with this recommendation we consulted on this issue extensively. We concluded that a time limit should apply because it:- Provides an important protection for forensic patients- Is fair, and does not provide for forensic patients to be detained or managed within the forensic system for longer than they would have been detained following conviction, and- Supports the raising of NGMI in appropriate cases: we were told repeatedly by stakeholders that indeterminate outcomes deter people from raising NGMI, so that people who should be in the forensic system are instead in the correctional system.

Annexure 1


·      The patient’s carer or family should be involved in the appointment of psychiatrist/medical professional.

o   Not met

·      Allowing consumers to specify, while healthy, the treatment they do not wish to be given in circumstances where they lose decision-making capacity.

o   Added but on vague terms.

·      The shift from patient substituted decision-making to supported decision-making.

o   Added but on vague terms.

·      Whether mental health services should be able to commence involuntary treatment of a person in the community without a CTO approved by the MHRT. – We were concerned that this would be added, as it is problematic

o   Not added.

·      Official Visitor: could help patients navigate mental health system and to access community services.

o   Better access to official visitors for patients and their primary care providers added.

·      CORRECTIONAL patients have limited access to carer nomination.

o   Not addressed.

·      Medical officers should be required to consider the views of carers, relatives etc.

o   Added.

·      Appeal regime relating to forensic patients/correctional patients is inadequate compared with appeals process for patients under mental health act.

o   Not addressed.

Annexure 2


Mental Health Amendment (Statutory Review) Bill 2014:

 Regarding forced medication/treatment:

·      References to “treatment and control” of patients are replaced with “treatment.” (idea that patients are actively involved in own treatment/recovery).

·      New Act object of “promoting the recovery of persons who are mentally ill” added – have to consider the views/wishes of patients in being involved in the development of their own treatment and recovery.

·      Amendment: 34: New requirement to support people to pursue their own recovery.

·      Amendment: 68: New requirement that the capacity of individuals to consent should be monitored.

·      Amendment: 37: New principle: every reasonable practicable effort should be made to obtain the consent of patients regarding treatment/recovery, to monitor their capacity to consent and support those who can’t.

 Regarding the rights of mental health consumers

·      Amendment: 71: replace the term primary carer with “designated carer” – up to two designated carers can be nominated by the consumer who specifies their access to information.

·      Amendment: 72A: A new type of carer – the Principle Care Provider, given much more power in order to care for the mentally ill individual better.

o   Will be entitled to receive information about admission/discharge, required to remain informed.

o   Authorised medical officers will be responsible for making reasonable attempts to identify this PCP in the case of detainment/medication etc.

·      Amendment: 72B: Clinicians are required, when determining whether a person should be detained in a mental health facility, to seek and consider the views of consumers, carers, family members, treating community psychiatrists/GPs and emergency service providers where it is reasonably practicable to do so.

·      Amendment: 19A and 27A: more clinicians will be empowered to undertake assessments under the Act, including medical practitioners from another facility or local health district/accredited persons (nurses/psychologists/social workers).

o   Also increasing numbers of declared mental health facilities and use of video-link technology to facilitate assessments.

·      Involuntary patients brought into a facility by police can be detained for up to 2 hours (not 1).

Regarding the rights of the mental health tribunal

·      Amendment: 9: New requirement: Patients who have been in the mental health facility for more than 12 months have a Mental health Review Tribunal Hearing.

·      Amendment: 74A: all voluntarily admitted patients will also be provided a statement of rights.

·      Amendment: Young people <16 years must be represented by a lawyer at a Mental Health Review Tribunal hearing – except for cases where they are probably going to be released and they don’t want to delay that by waiting around for an available lawyer.

[1]Mental Health Act 2007 (NSW) ss 201(2), (3).

[2] New South Wales, Parliamentary Debates, Legislative Assembly, 14 October 2014, 1 (Jai Rothwell, Minister for Mental Health, and Assistant Minister for Health).

[3] Ibid.

[4] NSW Health Mental Health, Drug and Alcohol Office, Discussion Paper September 2012: Issues Arising under the Mental Health Act 2007, 10

[5] Ibid.

[6] NSW Ministry of Health, Review of the Mental Health Act 2007: Report for NSW Parliament May 2013, 6.

[7] NSW Ministry of Health, Review of the Mental Health Act 2007: Report for NSW Parliament May 2013, 6.

[8] Wolstenholme M, Current Trends in Mental Health Legislation, Government of Western Australia, Mental Health Commission,, quoted in NSW Health Mental Health, Drug and Alcohol Office, Discussion Paper September 2012: Issues Arising under the Mental Health Act 2007, 17

[9] NSW Health Mental Health, Drug and Alcohol Office, Discussion Paper September 2012: Issues Arising under the Mental Health Act 2007, 15

[10] Ibid, 20.

[11] Ibid, 19-20.

[12] Ibid, 20.

13 NSW Health Mental Health, Drug and Alcohol Office, Discussion Paper September 2012: Issues Arising under the Mental Health Act 2007, 38

[14] Ibid, 39.

[15] Ibid, 39.

[16] NSW Ministry of Health, Review of the Mental Health Act 2007: Report for NSW Parliament May 2013, 16.

[17] NSW Ministry of Health, Review of the Mental Health Act 2007: Report for NSW Parliament May 2013, 16.

[18] Ibid, 17.

[19] Ibid, 65.

[20] Ibid, 67.

[21] Ibid. 68-69.

[22] NSW Ministry of Health, Review of the Mental Health Act 2007: Report for NSW Parliament May 2013, iii-iv,

[23] Mrs Barbara Perry, Second Reading Debate on the Mental Health Amendment (Statutory Review) Bill 2014, Legislative Assembly, 22 October 2014.

[24] Mrs Barbara Perry, Second Reading Debate on the Mental Health Amendment (Statutory Review) Bill 2014, Legislative Assembly, 22 October 2014.

[25] NSW CAG, 2011, <>. Accessed 24th October 2014.

[26] New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system, Report No 138 (2013) Recommendation 7.1, 7.2,

[27] There is no statutory requirement that the Mental Health (Forensic Provisions) Act 1990 (NSW) be reviewed cf Mental Health Act 2007 (NSW) 201.

[28]Mental Health (Forensic Provisions) Act 1990 (NSW) ss 23(1)(a), (b); s 24.

[29] New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system, Report No 138 (2013) Recommendation 7.1, 7.2. 

[30] Ibid, 179.

[31] Ibid.

[32] New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: an overview, Consultation Paper 5 (2010) vi. 

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