If you, or someone you love, has been taken to a mental health unit against your will, you may be asking whether it was lawful. That question matters, because being detained and having your liberty restrained is one of the most serious things the law can do to a person.
In NSW, the Mental Health Act 2007 sets out who can detain you, how you can be detained, on what grounds and for how long. When those rules are not followed, the detention can be unlawful, and you may be able to claim compensation. This guide explains the rules in plain English, the warning signs, and what you can do now.
At a glance
- Who can start it: a medical practitioner or accredited person (by certificate), an ambulance officer, a police officer, or on the order of a Local Court Judge.
- The core test for a doctor’s certificate: they must have personally examined or observed you immediately before, or shortly before, signing, and be satisfied that detention is necessary. A certificate also has a limited validity period: it generally cannot be used to admit or detain a person more than five days after it is given if the person is certified as mentally ill, or more than one day if certified as mentally disordered.
- Where you can be taken: a declared mental health facility.
- Time limits to sue: they vary with what you claim, and some are as short as three years. Get advice early.
- Do this now: write down what happened and when, and keep every document you were given.
What does it mean to be “scheduled” under the Mental Health Act?
Being “scheduled” means you have been taken to a mental health facility for assessment against your will, usually on a certificate signed by a doctor or other authorised person. The name comes from the schedule of the Act that holds the certificate form.
The rules sit in the Mental Health Act 2007 (NSW). The Act also sets out principles that are meant to guide every decision, including that you should receive care in the least restrictive environment possible (s 68). It also says any restriction on your liberty should be kept to the minimum necessary.
When is scheduling lawful?
Scheduling is lawful only when the person who starts it meets the conditions the Act sets for their route. There are three main routes, and each has its own test.
| Route | Who | What the Act requires (in outline) |
|---|---|---|
| Doctor’s certificate (s 19) | A medical practitioner or accredited person | They must have personally examined or observed you shortly before signing, hold the required opinion, consider detention necessary, and not be your designated carer, principal care provider or near relative. |
| Ambulance officer (s 20) | An ambulance officer | They must believe on reasonable grounds that you appear mentally ill or mentally disturbed and that it would benefit your welfare to be dealt with under the Act. |
| Police (s 22) | A police officer | The police officer must find that you appear mentally ill or mentally disturbed and believe on reasonable grounds that one of the statutory criteria applies, such as recent or likely serious harm or offending. |
A certificate is generally valid for five days where the person is certified as mentally ill, or one day where certified as mentally disordered. The certificate must also meet the other requirements in s 19.
Mentally ill means you have a mental illness and there are reasonable grounds to believe care, treatment or control is necessary to protect you or others from serious harm (s 14).
Mentally disordered means your behaviour is so irrational that temporary care, treatment or control is necessary to protect you or others from serious physical harm (s 15).
Police also have a separate role in assisting. Police may be asked to assist where a certificate includes a police assistance endorsement or an ambulance officer requests assistance. Whether an officer must act, and what they must do, depends on the statutory conditions in s 21. That power depends on the certificate being valid in the first place.
Does it have to be a “declared mental health facility”?
The scheduling provisions all refer to taking a person to a declared mental health facility. Premises become declared when the Secretary declares them by order in the Gazette (s 109).
A private hospital can be declared, but only if its owner has agreed in writing. So a private hospital is not automatically a place where you can be held as an involuntary patient. If you were scheduled from or taken to a hospital, it is fair to ask whether it was a declared facility.
For a current listing of declared mental health facilities, you can email .
What should happen after you arrive?
Once you arrive, the facility must assess whether the legal conditions for detention are met. You must be examined as soon as practicable, and no later than 12 hours after arrival, by an authorised medical officer, medical practitioner or accredited person.
The Act sets out further assessment and review steps. Whether a second examination or psychiatric assessment is required depends on the initial assessor’s opinion and the statutory process.
You must be told your rights, including by receiving a written statement, as soon as practicable after arriving. If the required opinions are not held, the facility must not continue your detention.
On discharge, staff must take reasonably practicable steps to consult you, and your carer where relevant, about follow-up care.
When might a detention be unlawful?
A detention may be unlawful where a legal requirement for it was missing at the time you were held. Whether that is so in your case depends on the facts and the paperwork, which is why a lawyer needs to look at it.
| Possible warning sign | What the Act requires |
|---|---|
| The doctor who signed the certificate never saw you | Personal examination or observation immediately before, or shortly before, signing (s 19) |
| You did not appear to meet the definition of mentally ill or mentally disordered | The statutory definitions in ss 14 and 15 |
| Less restrictive options were available | No other appropriate means reasonably available, and detention necessary (s 19) |
| You were taken somewhere that was not a declared facility | Scheduling provisions refer to a declared facility (s 109) |
| Nobody explained your rights | Oral explanation and written statement of rights (s 74) |
| A police officer acted without a valid certificate or a ground under s 22 | Police powers under ss 21 and 22 |
| You were held after the examining doctors decided you should not be | Detention must stop if the opinions are not held (s 12, s 27) |
These are red flags, not a verdict. A scheduling can look unlawful from the outside and be justified on the records, and the reverse can also be true.
Can you sue for being wrongly detained?
You may be able to, if you were detained without lawful authority. The legal claim is usually false imprisonment, which means being totally deprived of your liberty without lawful justification. You do not need to have been physically hurt.
Who can be sued depends on who did what. Depending on the facts, the people and bodies involved can include the doctor, the hospital operator and, where police were involved, the State. We assess that from the records rather than assuming.
Compensation can include damages for the loss of your liberty itself. In some cases a court can also award aggravated damages, which recognise extra hurt from the way you were treated, and exemplary damages, which mark disapproval of high-handed conduct.
Time limits matter. The period can vary depending on what you claim. Time limits depend on the legal claim and the circumstances. Do not assume you have three years, and do not assume you are out of time. Get legal advice as soon as possible so the applicable limitation period can be assessed under the Limitation Act 1969 (NSW). Do not assume you are out of time, and do not assume you have plenty of it.
Your rights and what you can do now
The most useful steps are practical ones: record what happened, get your documents and get advice before you speak to the other side.
- Write a timeline now. Note who you saw, what was said, the times and where you were taken, while your memory is fresh.
- Keep every document. This includes any certificate, rights statement, discharge paperwork and messages.
- Ask for your records. Your clinical records and any certificate are central to whether the detention was lawful.
- Note witnesses. Staff, family members, police and members of the public may have seen what happened.
- Look after your health. Keep seeing your regular doctor, psychiatrist or psychologist. Their notes also record the impact on you.
- Get legal advice early. Time limits apply, and records are easier to secure sooner.
If you are in distress, Lifeline is available 24 hours a day on 13 11 14. Or in an emergency, call 000.
Read more about false imprisonment claims, suing the police in Sydney and our civil lawyers in Sydney.
How a lawyer could help your claim
A civil lawyer can test whether the detention met the Act, then work out who is responsible and what you can claim. A claim like this is built on documents.
In practice, that can include:
- obtaining the certificate, clinical records and any police records
- comparing what happened with each requirement of the Act
- identifying who is legally responsible, which can be more than one party
- explaining your options for compensation and the likely time limits
- negotiating, or running the claim in court if it does not resolve
In one recent matter, we acted for a voluntary patient who was scheduled after leaving a private hospital for a walk. Her claim against the hospital operator ended in a consent judgment in her favour.
You can read it in our case study on unlawful detention under the Mental Health Act.
Frequently asked questions
Can a hospital schedule a voluntary patient?
Yes, but only if the legal requirements are met. Being a voluntary patient does not stop a doctor from using the Act, but the doctor must still meet the conditions in s 19, including personally examining or observing you.
Can police detain me under the Mental Health Act without a doctor?
In some circumstances, yes. Police have their own power under s 22 where the officer finds that you appear to be mentally ill or mentally disturbed and the additional statutory criteria are met. Those criteria include circumstances involving recent or likely offending, or recent or likely serious harm to yourself or another person. Outside those conditions, police generally need a valid certificate or an ambulance request before they can act.
Does the doctor who signs the certificate have to see me?
Yes. Under s 19, the person completing the certificate must have personally examined or observed your condition immediately before or shortly before completing it. They must also not be your designated carer, principal care provider or near relative.
How long can I be held after I am scheduled?
It depends on your situation, but there are firm checkpoints. An authorised medical officer must examine you no later than 12 hours after you arrive, and a person detained as mentally disordered cannot be held for more than three days continuously (excluding weekends and public holidays).
What if I was released after only a few hours?
You may still have a claim. The length of the detention affects how much compensation might be awarded. It does not decide whether the detention was lawful.
Do I need to have been injured to claim?
No. False imprisonment is about the loss of your liberty. If you also suffered a psychological or physical injury, that can form part of the claim, and it can change which time limits apply.
Is there a time limit to make a claim?
Yes, and it varies. Some periods are as short as three years, depending on what is claimed. Speak to a lawyer as soon as you can.
How O’Brien Criminal & Civil Solicitors can help
If you were detained under the Mental Health Act and think the process was not followed, our civil team can review the records and tell you where you stand. We act in claims arising from unlawful detention, including claims against the State, and we have run matters involving private hospitals.
Request initial advice (no-obligation) via the form below or call us on (02) 9261 4281.
This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.
