Consumer Rights in Mental Health

People with a mental illness enjoy the same rights as anyone else in the community. These include the right to self-determination and to go freely about their daily business without undue interference. At times, however, a mental illness may result in behaviour that leads to those rights being curtailed, generally though, for short periods. It is the purpose of the NSW Mental Health Act 2007 to: set out the circumstances in which this can happen; provide a framework of checks and balances; ensure that the interference with a person's rights, dignity and self-respect is kept to a minimum. Rights of involuntary patients: The presumption of liberty is embedded throughout the Act. It is generally expressed in: the concept of the "least restrictive environment". It is specifically expressed in: the right to internal review by the medical superintendent of the declared mental health facility; the right to external review by the visiting magistrate and/or the Mental Health Review Tribunal. Right to procedural fairness: This right is expressed by the sections of the Act that require specific procedures to be followed in: the process of involuntary admission; the process of external review. Right to information: Before a person is certified as "mentally ill" or "mentally disordered" they must be given: an oral explanation, and; a written statement of their legal rights; where a person is from a non-English speaking background or Aboriginal background, the assistance of interpreters, cross-cultural consultants, and Aboriginal health workers is important. If the person has not understood the first explanation it must be repeated: at least 24-hours before the magistrate's inquiry. If a Temporary Patient Order (TPO) is made the person must be informed of: their right of appeal to the medical superintendent; their right of appeal to the Mental Health Review Tribunal if the medical superintendent refuses to discharge them. Right to representation: The Act requires that patients be represented by a lawyer (or other person of their choosing: when the issue of their involuntary detention is being considered by a magistrate, unless they decide not to be represented. This representation is provided free of charge by solicitors of the Mental Health Advocacy Service. The Act allows patients to be represented by a lawyer (or other person of their choosing) in other matters that come before the Tribunal, e.g. the authorisation of ECT (electro convulsant therapy. The Mental Health Advocacy Service also offers representation in some of these matters. Right to wear street clothes to a hearing: The Act specifically provides patients with the right to wear their own clothes to any hearing before the magistrate or Tribunal. This is an important way of preserving the person's dignity. Right to have other people notified: Where a person is involuntarily detained, the hospital must: notify the person's family or nominated primary carer of the hospital's intention to have the person seen by a magistrate, unless the person objects; notify the person's legal guardian, even when the person objects. Right to an interpreter: Where the patient has a limited grasp of English, or does not speak it at all, the hospital must provide an interpreter to: explain the person's rights and entitlements; assist in interviews with medical staff where reasonably practical; assist in the magistrate's inquiry or Tribunal hearing. Right to access medical records: Under the NSW Mental Health Act 2007, patients and/or their lawyers have the right to access their medical records in relation to: a magistrate's inquiry. Access may be restricted to the patient's lawyer:where a medical practitioner believes the disclosure of the records would be harmful to the patient. In these cases the lawyer is not obliged to disclose information to the patient. Right to apply to be discharged: A Temporary or Continued Treatment Patient has the right to apply to the medical superintendent, either orally or in writing, to be discharged. The medical superintendent has three working days to make a decision. If the person's application is refused they can appeal to the MHRT. If the person indicates their wish to appeal, this must be brought to the attention of the Tribunal. A written request is useful but not essential. Rights in relation to medication: Involuntary patients: do not have the right to refuse medication, but do have the right to information about their medication, including side-effects and dosages. The patient's lawyer also has the right to information about their client's medication. In prescribing medication the mental health facility must: have due regard to the possible effects of the medication on the particular patient; prescribe the minimum dose consistent with proper care; monitor and review the drug administration practices of the mental health facility in general; prescribe with proper regard to current professional standards. Magistrates and Tribunals must: inquire into the medication of the patient before them; take into account the effect of the medication on the patient's ability to communicate at the hearing. Right to privacy and confidentiality: Where a person is seen by a magistrate or the Tribunal their name is not to be broadcast or published in any way, without their consent and the approval of the magistrate or Tribunal. Right to protection from ill-treatment: No person employed in a mental health facility is allowed to wilfully strike, wound, ill-treat or wilfully neglect a patient. Other general rights: Patients have other rights that are not mandated under the Mental Health Act. These may be drawn from other pieces of legislation or may generally be considered to comply with good practice. Some of these include: right to receive and send mail without interference; right to receive and make telephone calls; right to speak with friends, lawyers, relatives, etc., in privacy; right to be spoken to respectfully; right to refuse to have students or others present while being interviewed or treated.