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. It first provides an overview of some aspects of the system, then moves on to a guide to understanding and asserting your rights. If you think your rights might have been breached, contact some of legal services listed in the Resource Tab as well as the Equal Opportunity Commission.

Mental Health Act 2014 (Vic)

Victoria has recently undergone major legal reform in the mental health sector. This saw the replacement of the Mental Health Act 1986 (Vic) with the Mental Health Act 2014 (Vic) (“MHA”). One of the central aims of these reforms was to integrate consumer experience and participation into mental health decision-making; at an individual and systemic level. While the MHA provides some broader principles that govern mental health treatment in general, it largely focuses on people who are being given compulsory treatment. 

If this applies to you, it means you may be subject to a Compulsory Treatment Order or a Secure Treatment Order. As we will go through later, the MHA provides Authorised Psychiatrists to do give you compulsory treatment – but only under strict conditions where your rights must be protected. These rights include:

  • A right to be given a statement of your rights when you are subject to compulsory treatment;
  • A right to communicate;
  • A right to a nominated person;
  • A right to have your voice heard and advance statement considered.

Where the law becomes a bit less clear for people is when they are voluntary patients. This means you have voluntarily sought mental health treatment, either in the community or within an in-patient unit. While voluntary patients have the right to come and leave services as they see fit, their rights in these situations are less clear. For instance, a person may voluntarily enter a mental health service,  but their decision to leave may be considered by practitioners as grounds for a CTO application. It is also unclear to what extent the mental health principles in section 11 apply to voluntary patients.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Prior to the MHA reform, the Victorian government introduced the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter was aimed at integrating human rights principles into the creation and application of laws in Victoria. Among other things it requires the following:

  • Section 28 provides that law-makers must prepare statements of compatibility that show how proposed laws comply with human rights principles;
  • Section 32 provides that all statutory provisions should be interpreted, as far as is reasonable possible, to be consistent with human rights provisions;
  • Section 38 provides that a public authority, such as a healthcare provider, will be considered to have made an unlawful act if they did not give proper consideration to a relevant human right;

Section 39 is ambiguous. The section appears to require that an act may only be challenged at law if it is attached to another cause of action. For example, you may wish to attach a right to equality before the law (section 8 HRCA) to a claim under the Equal Opportunity Act 2010 (Vic). The section as it now stands means that you can not make the claim on a HRCA breach alone. This is very problematic, with recent proposed reforms being promoted by the Law Institute of Victoria suggesting a stand-alone cause of action.

Equal Opportunity Act 2010

The Equal Opportunity Act 2010 (Vic) (“EOA”) is designed to ensure that people can participate freely and equally in public life, such as in the workplace, education, housing and access to goods and services. Discrimination, which is unlawful under this piece of legislation, means that a person is treated unfairly or unfavorably on the basis of a particular attribute. These attributes include ethnicity, sexual orientation, gender, political views, or in this case, mental illness or disability.

While the EOA has a very complex operation, it does make a simple distinction between direct and indirect forms of discrimination, both of which are unlawful.

Direct Discrimination

Section 8(1) provides that direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute (e.g. sex, gender, mental illness) unfavorably because of that attribute. For example a store may choose not to serve you, because they believe your diagnosis means you will be dangerous and emotionally unstable. In these cases, the link can be quite obvious and straightforward.

Indirect Discrimination

Section 9(1) prevents indirect discrimination. This occurs where someone imposes, or proposes to impose, a requirement, condition or practice that is not reasonable and has (or is likely to have) the effect of disadvantaging a person with an attribute. An example in this case may be making all employees work irregular shifts that adversely impact someone with a mental health condition. The employer would need to make reasonable adjustments to the employee’s needs.

Your Rights Under the MHA & HRCA

The MHA provides a framework for the ethical use of compulsory treatment.