The submission is based upon the issues raised in the Discussion Paper: Issues Arising under the NSW Mental Health Act 2007. Part I of the submission deals with issues relating to the criteria for detention and treatment as addressed in parts 4, 6, 7, 17 and 20 of the Discussion Paper. Part II focuses on other matters such as treatment for conditions other than mental illness, electroconvulsive therapy and psychosurgery. The proposed revision of the Mental Health Act 2007 (NSW) will be the first re‐drafting of the State’s mental health legislation under the influence of the United Nations Convention on the Rights of Persons with Disabilities 2 (CRPD) and offers the opportunity for the first major re‐drafting since 1990. The revision provides an opportunity for an extensive modernisation of the mental health laws of New South Wales and a chance to set out innovative measures to better protect the health and rights of people living with mental illness. The authors provide a number of recommendations that will better protect patient rights, whilst providing a framework to better protect people who are vulnerable in certain circumstances. This will be achieved by legislation that is centred around a presumption of decision‐making capacity, facilitates supported decision‐making wherever decision‐making capacity is impaired, and encourages voluntary treatment wherever possible. Where people are unable to make their own decisions, even with support, substituted decision‐ making should be permissible in circumstances where the will and preference of the person is the paramount consideration, with the goal of supporting and enhancing the person’s overall wellbeing. The recommendations also take account of community concerns about the safety of others where people with mental illness are thought to present a risk of violence to persons. Part 2 of the submission deals with issues other than those relating to the criteria for detention and treatment as addressed in parts 4, 6, 7, 17 and 20 of the Discussion Paper. These include electroconvulsive therapy, psychosurgery, treatment for conditions other than mental illness, and seclusion and restraint. The authors are concerned to see that any new legislation will provide a rights‐based approach to mental health care in New South Wales, and in this report, we set out a number of recommendations which we believe will better protect patient rights, focus on supported decision‐making, and facilitate voluntary treatment wherever possible
