A proposed Human Rights Act for NSW would have significant implications for how mental health laws are interpreted and applied. While it would not override the Mental Health Act 2007 (NSW), it would place greater emphasis on how compulsory powers are justified, how decisions are made, and how people’s rights are protected in practice.

Mental Health Coordinating Council (MHCC)’s discussion paper, Potential friction points between a Human Rights Act for NSW and the NSW Mental Health Act 2007 explores likely areas of tension between the proposed Human Rights Act and the current Mental Health Act, including compulsory treatment, detention, supported decision-making and safeguards against unnecessary restrictions on liberty and autonomy.

Drawing on experience from other Australian states and territories, the paper aims to help the mental health sector engage with the Inquiry into the NSW Human Rights Bill and develop informed submissions. MHCC will also make its own submission.

Background

MHCC has been at the forefront of advocacy discussion for a Human Rights Act in NSW, producing two papers in October 2025 outlining its views on the proposed Human Rights Bill. As the parliamentary inquiry has progressed, MHCC has sought to focus the debate on issues directly relevant to the mental health sector. By exploring the interaction between a Human Rights Act and the Mental Health Act 2007, this paper builds on that work.

Why this matters?

A Human Rights Act for NSW would have significant implications for the mental health system. While the Mental Health Act would remain in force, human rights obligations would increase scrutiny of decisions involving compulsory treatment, detention and coercive practices. This could strengthen transparency, accountability and supported decision-making, and prompt reform where existing laws are found incompatible with human rights standards.

Key issues

• People subject to the Mental Health Act continue to experience significant restrictions on liberty, autonomy and bodily integrity, often without clear, transparent or rights based justification.
• Coercive practices such as involuntary treatment, detention, seclusion and restraint remain embedded in the system, despite growing evidence and human rights standards calling for their reduction and replacement with least restrictive, supported approaches.
• Supported decision-making is not consistently available or prioritised, leaving many people excluded from meaningful participation in decisions that profoundly affect their lives, wellbeing, housing and relationships.
• Decisions made by mental health services, tribunals and police can lack procedural fairness and accountability, particularly for people with psychosocial disability who already face stigma and structural disadvantage.
• Without stronger human rights obligations, people with lived experience remain vulnerable to inconsistent practice, limited safeguards and unequal treatment, reinforcing distrust in the mental health system and undermining recovery oriented care.

MHCC Recommendations

We are calling on government to:

• Legislate a Human Rights Act for NSW to ensure that decisions affecting people’s liberty, autonomy and dignity, particularly in mental health settings, are made transparently and with proper human rights safeguards.
• Require human rights based decision-making across the mental health system, including explicit consideration and documentation of necessity, proportionality and least restrictive alternatives when compulsory powers are used.
• Embed supported decision-making as the default, backed by law, resources and guidance, so people are supported to make their own decisions before substitute or coercive approaches are considered.
• Strengthen oversight and accountability of mental health services, tribunals and police where powers under the Mental Health Act limit individual rights, with clear pathways for review and scrutiny.
• Commit to reviewing and reforming Mental Health Act provisions that are repeatedly found incompatible with human rights standards, particularly those relating to compulsory treatment, detention, police powers and restrictive practices.

What happens next

• The NSW Parliament’s Committee on Community Services is inquiring into and reporting on the Human Rights Bill 2025.
• Submissions to the inquiry close on 3 July 2026.
• MHCC assumes that submissions may address both the Bill itself and the broader need for a Human Rights Act in NSW.
• The Committee may hold hearings and consider evidence from stakeholders, including mental health consumers, carers and the mental health sector.
• The Committee is expected to report its findings and recommendations to Parliament after considering submissions and any hearings. No reporting date appears to have been published yet.
• In parallel, outcomes of the Parliamentary Inquiry into Supported Decision Making and the role of the Ageing and Disability Commission will inform related reforms affecting capacity, consent and decision-making systems.

MHCC will continue to engage with members, people with lived experience and policymakers to consider how to shape reform discussions and advocate for rights based, least restrictive approaches in mental health law and practice.