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M2 - Learner Manual

27. Legal Support for People with a Mental Health Issue

Mental Health Advocacy Service 

The Mental Health Advocacy Service at Legal Aid NSW provides free legal advice about mental health and guardianship law.

You or your mob can call LawAccess NSW on 1300 888 529 for information and advice about any mental health or guardianship law problem.

Relatives and friends are also welcome to call for information.

How can the Mental Health Advocacy Service help you?

We can help you if you have to appear before the Mental Health Review Tribunal (‘the Tribunal’) or the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or you have been kept in a hospital under the Mental Health Act. We can also help you by giving advice over the telephone about these things and some other related matters like financial management orders and community treatment orders.

Mental Health Review Tribunal

If you have been kept in a hospital under the Mental Health Act you may appear before the Mental Health Review Tribunal (‘the Tribunal’). This Tribunal conducts mental health inquiries, makes and reviews orders and has some appeals about the care of people with a mental illness. A lawyer can act for you in the inquiry.

Your lawyer can also tell you about:

  • going to hospital under the Mental Health Act;
  • inquiries and hearings in front of the Tribunal;
  • financial management orders;
  • community treatment orders; and
  • appeals.

The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT)

The Mental Health Advocacy Service can advise, and sometimes act for people appearing before the Guardianship Tribunal.

Call LawAccess NSW on 1300 888 529 as soon as you know the date you have to appear at the Guardianship Tribunal. We need as much time as possible before the hearing date to talk to you and arrange for someone to act for you.

What if I am in hospital?

If you are in hospital and seeing the Tribunal for the first time, a lawyer will come to see you first. Our lawyers, or private lawyers paid by Legal Aid NSW go to each hospital in New South Wales where people are kept under the Mental Health Act.

A lawyer will also visit you if you are kept in hospital and will be seeing the Tribunal about:

  • keeping you for a longer time
  • having your money managed by the NSW Trustee and Guardian.

Sometimes a lawyer can act for you if:

  • the hospital or community mental health centre is asking for a community treatment order (CTO) for you, and
  • you ask us to represent you.

There are other times when a lawyer can represent you including when you want to leave hospital and the doctor won’t let you.

You can call the Mental Health Advocacy Service if you don’t understand what is happening to you. We will pay for the call if you are outside Sydney.

Call LawAccess NSW on 1300 888 529 for information and advice about any mental health or guardianship law problem.

Sourced on 4/8/22: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/mental-health-advocacy-service

Mental Health Coordinating Council

Mental Health Coordinating Council champions community-based mental health services to support better outcomes for people living with mental health conditions. We work to strengthen mental health organisations by advocating to government and key decision makers, delivering sector-leading resources and tools, and providing quality training for the mental health workforce.

The Mental Health Coordinating Council has published a Mental Health Rights Manual. Extracts from Chapter 8 Section B: Aboriginal People in NSW living with mental health conditions, are provided below:

Terminology varies across documents and contexts. This manual refers to First Nations people as Aboriginal people in recognition that they are the original inhabitants of NSW. The use of ‘Torres Strait Islander’ and ‘Indigenous’ is only used when quoting the Commonwealth Government.

Aboriginal and Torres Strait Islander peoples, like other Australians, have community and family members living with mental health conditions. Different cultures have very different conceptualisations of mental health. Use of the term ‘mental health’ can act as a barrier to engaging with Aboriginal people, and the concept of ‘recovery’ is somewhat foreign to people whose perspective of mental health embraces the mind, the body and the environment as inseparable, preferring to use the term ‘social and emotional wellbeing’.

For Aboriginal people, social and emotional wellbeing includes connection to family, community, ancestry, culture, spirituality and land. Conceptualisations of mental health will differ from community to community.

Aboriginal peoples are more likely to experience disadvantage in Australian society. This is reflected in the level of poverty Aboriginal people and communities experience. They often have poor access to basic services, including health services, when compared to non-Aboriginal Australians. It can be challenging for an Aboriginal person to seek help from a mental health system that may not understand their culture, family obligations or unique community structures. If an Aboriginal and/or Torres Strait Islander person has had previous negative experiences with government systems or authority figures, it may take time for that person to develop trust with a mental health professional.

This section highlights some mechanisms and services that are available to Aboriginal people that work to maximise fair access to mental health care, treatment and support in NSW.

You will find information on:

It is acknowledged that while Aboriginal communities share cultural believes, they also remain diverse and individual.

8B.1: Racial discrimination and Aboriginal people

If you are discriminated against when you are trying to access services (including health services), you can use anti-discrimination law to complain about it, possibly to get compensation, and prevent it from happening again.

If the discrimination you experience is because of your mental health condition, click here to find out more about what you can do.

If the discrimination is because you are Aboriginal or Torres Strait Islander, this is called racial discrimination.

There are two laws that apply to racial discrimination that happens in NSW:

  • The Racial Discrimination Act 1977 (Cth) that applies to discrimination that happens anywhere in Australia, including NSW; and
  • The Anti-Discrimination Act 1977 (NSW) that applies to discrimination that happens in NSW.

These laws make it unlawful to discriminate against a person because of their race in a range of areas of life, such as work, provision of goods and services, housing, access to public places and education.

There are similar laws in each state and territory, some of which are called anti-discrimination laws, others of which are called equal opportunity laws. You can find out more about these laws here.

In NSW, the Anti-Discrimination Board (ADB) investigates racial discrimination complaints made under the Anti-Discrimination Act 1977 (NSW), and tries to resolve such complaints by conciliation, a process which tries to reach an agreement between the person who has made the complaint and the person or organisation against whom the complaint has been made. If no agreement is reached, then the ADB may refer the matter to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal for determination by an independent Tribunal.

The ADB has Aboriginal Outreach Program which helps Aboriginal people deal with discrimination. This program has Aboriginal staff members and provides a culturally appropriate service. More information is available here or through the ADB’s enquiries line on 1800 670 812*.

At a national level, the Australian Human Rights Commission (AHRC) is responsible for dealing with complaints of discrimination under the Racial Discrimination Act 1977 (Cth). Like the ADB, the AHRC will investigate the complaint and try to resolve such complaints by conciliating an agreement between the parties to the complaint. If an agreement cannot be reached, the person making the complaint then has the option of making an application to the Federal Circuit Court of Australia or the Federal Court of Australia for determination of the complaint.

The AHRC also has a specific race discrimination unit and Aboriginal and Torres Strait Islander Social Justice Unit that undertake policy and advocacy activities in relation to race discrimination and social justice for indigenous peoples.

Click here for information about racial discrimination from the Australian Human Rights Commission and from the Anti-Discrimination Board.

Complaints to the ADB should generally be made within twelve (12) months of the actions that you believe were unlawful discrimination. Complaints to the AHRC should generally be made six (6) months of the actions that you believe were unlawful discrimination. You should ask the ADB or AHRC for more information about the time limit for your particular complaint.

To find more information about how to seek legal assistance, click here.

8B.3: Mental health services for Aboriginal and Torres Strait Islander peoples

There are specific services available to help Aboriginal people living with mental health conditions in NSW:

To find information about health services for Aboriginal and Torres Strait Islander people in NSW follow this link to the Aboriginal Health and Medical Research Council of NSW website.

If you are an Aboriginal person seeking help for mental health issues, you may wish to ask if you can bring a family member or support person to appointments with you.

8B.3.6: Further resources for social and emotional wellbeing

For more information about the social and emotional wellbeing (including mental health needs) of Aboriginal and Torres Strait Islander people and communities, visit the websites below:

Sourced on 4/8/22: https://mhrm.mhcc.org.au/chapters/8-people-with-mental-health-and-co-existing-conditions/8b-aboriginal-people-in-nsw-living-with-mental-health-conditions/