The Mental Health Legal System

Navigating the mental health system in Victoria can be overwhelming. This page is aimed at giving a simple guide to your rights as a mental health consumer. First is an overview of the system, then its a guide to your rights. This is legal information, not legal advice. If you have concerns, contact the services in the Resource Tab.

Mental Health Act 2014 (Vic)

In 2014 the government reviewed some of our mental health laws. Part of this saw the 1986 Act replaced with the Mental Health Act 2014. Central to this was ensuring that you are involved and encouraged to make decisions about your treatment. There’s lots you may want to know, but most important might be:

  • What is compulsory treatment and who decides?
  • What should I expect from the mental health service?
  • What rights and protections do I have?
  • What services can help me if I have concerns?

What is compulsory treatment & who decides?

You might be in a hospital or in the community having treatment that you don’t want. This could mean that you are under a compulsory treatment order.

If you are on a compulsory treatment order, it means the psychiatrist thinks that (this is quoted from the Act):

(a) the person has mental illness; and

(b) because the person has mental illness, the person needs immediate treatment to prevent—

(i) serious deterioration in the person’s mental or physical health; or

(ii) serious harm to the person or to another person; and

(c) the immediate treatment will be provided to the person if the person is subject to a Temporary Treatment Order or Treatment Order; and

(d) there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

If you don’t agree with this, you can appeal anytime to the Mental Health Tribunal.

What should I expect from Mental Health Services?

Well, probably a lot of things, but I’ll keep it to what the law says. Section 11 have the principles that all mental health services must follow. Have a read:

” (a) persons receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred;

(b) persons receiving mental health services should be provided those services with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life;

(c) persons receiving mental health services should be involved in all decisions about their assessment, treatment and recovery and be supported to make, or participate in, those decisions, and their views and preferences should be respected;

(d) persons receiving mental health services should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk;

(e) persons receiving mental health services should have their rights, dignity and autonomy respected and promoted;

(f) persons receiving mental health services should have their medical and other health needs, including any alcohol and other drug problems, recognised and responded to;

(g) persons receiving mental health services should have their individual needs (whether as to culture, language, communication, age, disability, religion, gender, sexuality or other matters) recognised and responded to;

(h) Aboriginal persons receiving mental health services should have their distinct culture and identity recognised and responded to;

(i) children and young persons receiving mental health services should have their best interests recognised and promoted as a primary consideration, including receiving services separately from adults, whenever this is possible;

(j) children, young persons and other dependents of persons receiving mental health services should have their needs, wellbeing and safety recognised and protected;

(k) carers (including children) for persons receiving mental health services should be involved in decisions about assessment, treatment and recovery, whenever this is possible;

(l) carers (including children) for persons receiving mental health services should have their role recognised, respected and supported.

(2) A mental health service provider must have regard to the mental health principles in the provision of mental health services.

(3) A person must have regard to the mental health principles in performing any duty or function or exercising any power under or in accordance with this Act.”

What rights and protections do I have?

So you have these expectations of services, but it’s not happening. What can I do? There are some rights, protections and services that may be able to help.

  • Statement of rights – whenever you enter a mental health service on a treatment order, you should be given a statement of rights. You must be given this, and you must have it explained to you. You have a right to this explained multiple times in a way you understand.
  • A right to communicate – you have the right to communicate lawfully with any person. There are some times where a psychiatrist can restrict this to some people. You cannot have your right to communicate with Independent Mental Health Advocacy, Victoria Legal Aid (or any legal person representing you), or the Mental Health Complaints Commissioner restricted.
  • A right to a nominated person. This person can advocate for what you want, and the service must consult them at key stages of the decision-making.
  • A right to have your views and preferences heard and responded to.
  • A right to an advance statement – this is a document that outlines your treatment preferences while you are under the Mental Health Act.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

There is also the Charter of Human Rights and Responsibilities Act 2006. The Charter is meant to bring human rights principles into laws and services in Victoria. Some important parts are:

  • Section 28 says that law-makers must give statements showing how new laws fit within human rights principles in the Charter.
  • Section 32 says that all laws should be interpreted, as much as possible, within these human rights principles.
  • Section 38 says that all public authorities, such as a public mental health service, need to consider the principles in their actions.

See this link to read through all of the Charter Rights: https://www.humanrightscommission.vic.gov.au/human-rights/the-charter/rights-under-the-charter

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