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Mental health care system-related legal issues

Under the Mental Health Act 1990 (NSW), NSW Health is responsible for providing mental health care. The Act covers and facilitates both the voluntary and involuntary care and treatment of people who have been defined as “mentally ill” or “mentally disordered” in both community care facilities and hospital facilities.¹ The Act defines three categories of mental health patients: informal (voluntary) patients, who agree voluntarily to go to hospital and receive treatment; involuntary patients, who under the Act are ordered to go to hospital by a magistrate; and forensic patients, who are those patients who have a mental illness and have been arrested for committing a crime or who are in prison.² Eight participants in this study reported having been hospitalised as involuntary patients under the Mental Health Act 1990 (NSW) at some stage.³ In addition, four participants also reported having been admitted as informal (voluntary) patients.⁴

According to consultations, the main legal issues facing people with a mental illness who have been hospitalised include:

• confusion about when they are to be discharged from hospital⁵
• confusion about when they move from voluntary to involuntary status⁶
• not understanding their rights in relation to medical treatment.⁷

Although involuntary patients do not have the right to refuse medication under NSW law (unlike the situation in North America), they must be told what the medication is. One participant alleged that she was forcibly injected with medication without being told what it was:

One nurse told me to take a drug and I asked him what is it for and he said just take it. I refused to so they called security. Security marches me to the isolation room and some nurse puts a needle in my bum and then they all go on their merry way. If I had been informed what the medication was and what it was for, I would have complied and hence not created a scene.⁸

Service providers argued that people from a non-English speaking background (NESB) face difficulties understanding their rights because of language barriers. On arrival at hospital, involuntary patients must be read their rights under the Mental Health Act 1990 (NSW).⁹ If a person does not speak English the medical superintendent who is responsible for informing the patient of their rights must arrange for an interpreter.¹⁰ However, service providers argued that people from NESBs are not being properly informed of their rights upon being involuntarily admitted to hospital, because an interpreter was not always available.¹¹ The need for interpreters was also raised as an issue by the Official Visitors Programme.¹²