Introduction
NOTE: The law in this chapter is current as at 1 September 2024 and derived in part from materials available on the Victorian Department of Health website.
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For the purposes of the Mental Health and Wellbeing Act 2022 (Vic) (‘MHW Act’), ‘mental illness’ is defined as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’ (s 4(1)).
Under the MHW Act a person is not considered to have mental illness by reason only of one or more of the following:
expressing, refusing or failing to express a particular political or religious opinion or belief or a particular philosophy;
expressing, refusing or failing to express a particular sexual preference, gender identity or sexual orientation;
engaging, refusing or failing to engage in a particular political or religious activity;
engaging in a certain pattern of sexual behaviour;
engaging in conduct that is contrary to community standards of acceptable conduct, or antisocial behaviour;
being intellectually disabled;
using drugs or consuming alcohol, although the serious temporary or permanent physiological, biochemical or psychological effects of their use may be regarded as an indication the person has mental illness;
having a particular economic or social status or belonging to a particular cultural or racial group;
being involved in, or having been involved in, family conflict;
experiencing or having experienced psychological distress; and
having previously been diagnosed with or treated for mental illness.
Treatment and detention of people with intellectual disabilities is covered by the Disability Act 2006 (Vic), not by mental health legislation.
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A ‘consumer’ of mental health and wellbeing services is a person who receives services on a voluntary basis.
A ‘patient’, for the purposes of the MHW Act, is a person who is subject to compulsory mental health treatment.
An ‘inpatient’ is a person who is subject to compulsory mental health treatment in a hospital setting.
These terms are used interchangeably in this chapter.
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A mental health and wellbeing service is a service performed for the primary purpose of:
improving or supporting a person’s mental health and wellbeing;
assessing, or providing treatment, care or support to a person for mental illness or psychological distress; or
providing care and support to a person who is a family member, carer or supporter of a person with mental illness or psychological distress (MHW Act s 3).
A mental health and wellbeing service provider means an entity (other than an individual) that:
receives funding directly from the Victorian Government for the primary purpose of providing mental health and wellbeing services; or from another entity that received funding from the Victorian Government for the primary purpose of providing mental health and wellbeing services and passes on a portion of that funding for a purpose consistent with its arrangement or agreement with the State; and
employs or engages a mental health and wellbeing professional in connection with providing the mental health and wellbeing services (s 3).
This includes a range of service providers such as area mental health services, state-wide and specialist mental health services, mental health and wellbeing locals, and mental health community support services.
A mental health and wellbeing professional means a person who performs duties in connection with the provision of mental health and wellbeing services and who is:
a registered medical practitioner;
a registered psychologist;
a registered nurse or enrolled nurse;
a registered paramedic;
a registered occupational therapist;
a social worker of a prescribed class;
a counsellor of a prescribed class; or
a person employed or engaged in a prescribed role that requires the person to have personal experience with mental illness or experience as a carer of a person who is living with mental illness;
a psychosocial support worker of a prescribed class; or
an allied health professional of a prescribed class (s 3).
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The MHW Act commenced on 1 September 2023 following the Final Report of the Royal Commission into Victoria’s Mental Health System (‘Royal Commission’). The Royal Commission recommended the Victorian Government design a new legislative framework for mental health and wellbeing, in partnership with people with lived experience of mental health and psychological distress and their family and carers.
The MHW Act represents one part of a 10-year reform plan in mental health and wellbeing. This legislative framework supports the co-design and delivery of services that are responsive to the needs and preferences of Victorians, in partnership with people with lived experience. It introduces a mental health and wellbeing system predicated on voluntary treatment. Seclusion and restraint practices (including both bodily and chemical restraint) are to be eliminated from use by 2031. Expanded mental health and wellbeing principles coupled with decision-making principles articulate a human rights focus to assessment and treatment in mental health and wellbeing services. They envision a collaborative, inclusive and recovery-oriented framework for assessment and treatment with increased safeguards, accountability, rights, protections, and oversight.
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The MHW Act objectives in section 12 support the pursuit of the highest attainable standard of mental health and wellbeing for Victorians, specifically to:
promote conditions in which people can experience good mental health and wellbeing and recover from mental illness or psychological distress;
reduce inequities in access to and delivery of mental health and wellbeing services;
provide for comprehensive, compassionate, safe and high-quality mental health and wellbeing services that:
are accessible, responsive and timely, recognising people’s needs may vary over time;
are consistent with a person’s treatment, care, support and recovery preferences wherever possible;
are available early in life, early in onset and early in episode;
recognise and respond to diversity of background and need;
provide culturally safe and responsive services to Aboriginal and Torres Strait Islander peoples in order to support and strengthen connection to culture, family, community and Country;
connect and coordinate with other support services to respond to the broad range of circumstances that influence mental health and wellbeing, including alcohol and other drug services and supports;
include a broad range of treatment options, accessible whether a person is receiving voluntary or compulsory treatment;
include a broad and accessible range of voluntary treatment and support options to enable a reduction in the use of compulsory assessment and treatment, and to reduce the use of seclusion and restraint with the aim of eliminating its use within 10 years;
promote continuous improvement in the quality and safety of mental health and wellbeing services by ensuring people with lived experience of mental illness, compulsory treatment and their families/carers are at the centre of changes in practice, service delivery, design and evaluation of mental health and wellbeing services;
protect and promote the human rights and dignity of people living with mental illness by providing them with assessment and treatment in the least restrictive way possible in the circumstances;
recognise and respect the right of people with mental illness or psychological distress to speak and be heard in their own voices, from their own experiences and from within their own communities and cultures;
recognise, promote and actively support the role, health and wellbeing of families, carers and supporters in the care, support and recovery of people living with mental illness or psychological distress;
recognise, value, support and promote the critical work of the clinical and non-clinical mental health and wellbeing workforce; and
promote the mental health and wellbeing principles (see below).
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The mental health and wellbeing principles protect the rights of people using mental health and wellbeing services.
The MHW Act also builds on existing protections that were available under the Mental Health Act 2014 (Vic) (‘MH Act’), including statements of rights and particular supports for people receiving compulsory assessment or treatment, such as nominated support persons and advance statement of preferences.
It also introduces an opt-out model for non-legal advocacy to people receiving compulsory treatment.
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In addition to the objectives of the MHW Act, mental health and wellbeing service providers must make all reasonable efforts to comply with the mental health and wellbeing principles (MHW Act pt 1.5) when providing mental health services. These principles must also be applied by anyone who performs any duty or function or exercises any power under the MHW Act. They must prioritise the values, treatment preferences and views of consumers, families, supporters, and carers. The principles support the Royal Commission’s ambition to reduce the use of compulsory treatment and restrictive interventions. The MHW Act sets a higher standard of accountability for mental health and wellbeing service providers to meaningfully embed the principles into daily practice. Mental health and wellbeing service providers must also provide safe, person-centred mental health and wellbeing services and foster continuous improvement in the quality and safety of the care and mental health and wellbeing services they provide.
The 13 mental health and wellbeing principles are:
Dignity and autonomy principle – Promoting and protecting people’s rights, dignity and autonomy and supporting them to exercise those rights.
Diversity of care principle – Providing access to a diverse mix of care and support services, determined as much as possible by the needs and preferences of the person including their accessibility requirements, relationships, living situation, any experience of trauma, level of education, financial circumstances and employment status.
Least restrictive principle – Providing services to a person with the least possible restriction of their rights, dignity and autonomy with the aim of promoting their recovery and full participation in community life. The views and preferences of the person should be key determinants of the nature of this recovery and participation.
Supported decision-making principle – Supported decision-making practices are to be promoted. Persons are to be supported to make decisions and be involved in decisions about their assessment, treatment and recovery including when they are receiving compulsory treatment. The person’s views and preferences are to be given priority.
Family and carers principle – Families, carers and supporters (including children) of a person are to be supported in their role in decisions about the person’s assessment, treatment and recovery.
Lived experience principle – The lived experience of a person and their carers, families and supporters is to be recognised and valued as experience that makes them valuable leaders and active partners in the mental health and wellbeing service system.
Health needs principle – Identifying and responding to the medical and other health needs of people, including any related to the use of alcohol or other drugs. In doing so, the intersectionality of a person’s mental health and health needs should be considered.
• Dignity of risk principle – A person has the right to take reasonable risks to achieve personal growth, self-esteem and overall quality of life. Respecting this right involves balancing the duty of care owed to people with actions to afford each person the dignity of risk.
Wellbeing of young people principle – Promoting and supporting the health, wellbeing and autonomy of children and young people receiving mental health and wellbeing services, by providing treatment and support in age and developmentally appropriate settings and ways. Recognising that their lived experience makes them valuable leaders and active partners in the service system.
Diversity principle – Actively considering the diverse needs and experiences of a person noting that such diversity may be due to a variety of attributes including gender identity, sexual orientation, sex, ethnicity, language, race, religion, faith or spirituality; class, socioeconomic status, age, disability, neurodiversity, culture, residence status and geographic disadvantage. Providing services that are safe, sensitive and responsive to the diverse abilities, needs and experiences of the person including any experience of trauma and considering the intersectionality of those diverse needs with the person’s mental health.
Gender safety principle – People receiving services may have specific safety needs or concerns based on their gender. Consideration is to be given to these needs and concerns and access is to be provided to services in a manner that is safe, responsive to any current or historical experience of family violence or trauma, recognises and responds to the ways gender dynamics may affect service delivery, treatment and recovery, and recognises and responds to the intersectionality of gender and other types of discrimination and disadvantage.
Cultural safety principle – Services are to be culturally safe and responsive to people of all racial, ethnic, faith-based and cultural backgrounds. Treatment and care is to be appropriate for and consistent with the cultural and spiritual beliefs and practices of a person. Regard is to be given to the views of the person’s family, and to the extent that it is practicable and appropriate to do so, the views of significant members of the person’s community.
Regard is to be given to Aboriginal and Torres Strait Islander people’s unique culture and identity, including connections to family and kinship, community, Country and waters. To the extent practicable, and appropriate, treatment and care for Aboriginal and Torres Strait Islander people is to be decided and given having regard to the views of elders, traditional healers and Aboriginal and Torres Strait Islander mental health workers.
Wellbeing of dependents principle – The needs, wellbeing and safety of children, young people and other dependents of people are to be protected.
Mental health and wellbeing providers must give proper consideration to the principles and make all reasonable efforts to comply with the principles when exercising a function under the MHW Act. Complaints can be made to the Victorian Mental Health and Wellbeing Commission (MHWC) if a service provider fails to comply with their obligations under these principles. Service providers must report on how they respond to the principles in annual reports.
Proper consideration is the same test that applies to consideration of rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’). In practice, what this means will vary according to the context. In circumstances where a decision is urgent or needs to be made under pressure, what is ‘proper consideration’ will be different to circumstances where there is more time for a decision or where the impact of a decision may be particularly significant. It does not mean that individual decisions must always be informed by legal advice, or that a sophisticated formula or process must be followed.
Consideration of the mental health and wellbeing principles must be more than a token, tick box, or formality.
Proper consideration will usually require a team approach. It will be supported by resources including fact sheets, care planning processes, lived experience resources and engagement, and by ongoing communication and collaboration across various disciplines with the person receiving care and their families, carers and supporters. To demonstrate proper consideration, mental health and wellbeing services should point to activities and information gained across a range of points along the continuum of care.
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Appropriate supports (MHW Act pt 2.1) are defined as measures that can be reasonably provided to assist a person to make decisions, understand information and their rights, and communicate their views, preferences, questions or decisions.
Reasonable steps must be taken to work out what supports might be needed and these steps must be recorded in the patient file:
use a preferred language (involving interpreters when required);
communicate in an appropriate physical or sensory environment. For example, ensure that there are no loud or distracting sounds when sharing important information;
make sure communication is accessible and inclusive – be clear and easy to understand and communicate. Check in with consumers, carers and families to ensure understanding;
allow and enable the person’s family member, carer, supporter or advocate to be present (including by the use of technology if not in person);
tailor communication to the person’s needs and provide information in multiple modalities, including digital options – this could include their literacy level, developmental needs, cultural needs and whether or not they have recently experienced stressful or traumatic events; and
provide space for communication with family members, carers, supporters or advocates.
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A statement of rights (MHW Act pt 2.2) must be given to a person at key points during a person’s compulsory mental health assessment and treatment.
There is an obligation on the mental health and wellbeing service professional providing the statement to take all reasonable steps to ensure it is understood.
As well as this, a person must be given an oral explanation of their rights in a way they can easily understand.
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The MHW Act establishes an opt-out approach for people who are receiving compulsory treatment to access non-legal mental health advocacy support.
Non-legal mental health advocates (MHW Act pt 2.3) assist people receiving mental health and wellbeing services to understand information about mental health assessment, treatment, care and recovery, to participate in decision-making, and to express their views and exercise their rights.
Non-legal mental health advocacy services are provided by Victoria Legal Aid through the Independent Mental Health Advocacy Program (IMHA).
A non-legal mental health advocate can represent a consumer’s views to mental health and wellbeing service staff and provide non-legal assistance to the consumer.
Advocates help consumers to:
understand information regarding their assessment, treatment and care;
participate in the making of decisions about assessment, treatment and care;
express their decisions, views and preferences; and
understand and exercise their rights, such as making an advance statement of preferences, appointing a nominated support person, seeking a second psychiatric opinion, seeking legal advice, making a complaint to the MHWC.
Acting on the instructions of a consumer, a non-legal mental health advocate can:
access personal or health information of a consumer;
access a consumer’s advance statement of preferences;
attend meetings with the consumer;
seek information on behalf of a consumer from a mental health and wellbeing service provider; and
make contact with a consumer’s nominated support person, family carer or supporter.
If a consumer is a patient and the advocate is unable to obtain instructions, the advocate can attend the relevant designated mental health service to observe and meet the patient and obtain information, including information about the patient’s treatment and welfare to ensure the rights of the patient are upheld.
To support an opt-out approach (where advocates make contact with people who are receiving compulsory treatment), notifications must be made to the non-legal mental health advocacy service when certain events occur, including when a person is made subject to a temporary treatment order (TTO) or treatment order (TO), when a person’s order is varied or revoked, if restrictive interventions are used or when certain patients are received at or transferred to a designated mental health service.
In most cases this notification will occur automatically when information is entered into the Victorian Client Management Interface/Operational Data Store (CMI/ODS). Service providers need to ensure that data is entered in a timely way.
Individuals can also contact the service directly to seek advocacy support.
An opt-out register is available for people to register that they do not want to be offered or provided with non-legal mental health advocacy services.
Mental health and wellbeing service providers must give any reasonable assistance to an advocate to undertake their role.
Protocols issued by the Chief Officer set out further details about how the non-legal mental health advocacy service operates and what assistance must be provided.
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People receiving compulsory assessment or treatment in hospital have a right to communicate lawfully with any person, including for the purpose of seeking legal advice or representation or assistance from an advocate (MHW Act pt 2.4).
Communication includes making or receiving phone calls, sending or receiving letters, communicating via electronic means, and receiving visitors at reasonable times. Staff of a designated mental health service must ensure reasonable steps are taken to assist an inpatient to communicate.
An authorised psychiatrist can make a written direction to restrict a person’s right to communicate if they are satisfied that it is reasonably necessary to protect the health, safety and wellbeing of the inpatient or of another person. Restrictions must be the least restrictive means possible in the circumstances.
An authorised psychiatrist cannot restrict an inpatient’s right to communicate with a legal representative, the chief psychiatrist, the MHWC, the Mental Health Tribunal (MHT), a community visitor, a non-legal mental health advocacy service provider/advocate or the Secretary of the Department of Families, Fairness and Housing (DFFH) if the Secretary has parental responsibility for the person under a child protection order.
An authorised psychiatrist who makes a direction to restrict a person’s right to communicate must ensure reasonable steps are taken to inform the inpatient of the restriction and the reason for it. Information must also be provided to their nominated support person, guardian, carer (if the restriction will directly affect the carer and care relationship), parent if the person is under 16 years of age, the Secretary of the DFFH if relevant and the non-legal mental health advocacy service provider.
The authorised psychiatrist must regularly review the decision to restrict an inpatient’s right to communicate and must end the restriction immediately if satisfied that it is no longer necessary.
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A person subject to a community treatment order (CTO) can seek a second psychiatric opinion (MHW Act pt 2.7) to:
provide an opinion about whether the treatment criteria for a CTO apply;
review any treatment provided by the authorised psychiatrist; and
recommend any changes to that treatment.
Any psychiatrist can provide a second psychiatric opinion. This may not be a free service.
The ‘Second Psychiatric Opinion Service’ is a free and independent service available to consumers.
A second psychiatric opinion report must be prepared by the second psychiatrist outlining their opinion on whether the treatment criteria apply, the treatment provided and any recommended changes to the treatment that are deemed appropriate. The authorised psychiatrist will:
consult with the patient about their views and preferences for treatment, beneficial alternative treatments and their reasons for these views including any recovery outcomes they seek;
review an advance statement of preferences; and
consult with nominated support persons, guardians, carers (in some circumstances), parents of children under the age of 16 and the DFFH Secretary if parental responsibility is awarded to them for a child.
If this second psychiatric opinion report provides an opinion that the treatment criteria do not apply, the authorised psychiatrist must examine the patient as soon as possible after receiving the report and determine whether the criteria apply. If the authorised psychiatrist deems the criteria apply, they must give the patient their reasons for determining this and advise them that they can apply to the MHT for review. This must be done orally as soon as practicable after the determination and in writing within 10 days after the determination is made.
This second psychiatric opinion does not automatically override any treatment order or treatment plan. If the second psychiatric opinion report recommends changes to the patient’s treatment, the authorised psychiatrist must review the patient’s treatment and decide whether to adopt all, some, or none of the recommendations in the report.
If none or only some of the recommendations by the second-opinion psychiatrist are not adopted by the authorised psychiatrist, the authorised psychiatrist must give reasons to the patient (orally as soon as practicable and in writing within 10 days) and advise the patient they can make an application to the chief psychiatrist for a review of the patient’s treatment if they are dissatisfied with the decision of the authorised psychiatrist. The chief psychiatrist must review the treatment within 10 days of receiving the application. The chief psychiatrist can direct the authorised psychiatrist to change the treatment plan and must notify the patient, authorised psychiatrist and relevant others of this decision as soon as practicable in writing.
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An advance statement of preferences (MHW Act pt 2.5) is a written document in which a person states their preferences about treatment, care and support if they became unwell and needed compulsory mental health assessment or treatment.
A designated mental health service must take all reasonable steps to find out whether a person has an advance statement of preferences and ensure that all reasonable efforts are made to give effect to it.
The reasonable steps that should be taken will depend on the circumstances but may, for example, include:
checking the person’s file to see if there is a record of an advance statement of preferences being made;
asking the patient, their nominated support person, or their family, carer or other supporter if the person has made an advance statement of preferences; and
asking anyone who has referred the patient and has ongoing involvement in their care, such as a private psychiatrist or GP.
An advance statement of preferences may include any preferences relating to treatment, care and support. This may include information about:
treatment the person prefers or finds effective;
treatments they’ve received in the past that they find ineffective;
their views about medication and electroconvulsive treatment (ECT);
support preferences to assist them to communicate and participate in decision-making;
preferences about who may be provided with their health information; or
the name and contact details of any support persons to be informed they are a patient, including any nominated support person or advocate.
A person can make an advance statement of preferences at any time. A form is available on the Department of Health’s website: www.health.vic.gov.au/mental-health-and-wellbeing-act-handbook/advance-statements-of-preferences.
The statement must be:
in writing;
signed and dated by the person making it; and
witnessed by another adult and include a statement by the witness stating that they believed the person making the statement understands what it is, understands the consequences of making it and how to revoke it, and the person appears to have made the statement of their own free will. They must also state they observed the person signing it and that they are an adult.
An advance statement of preferences cannot be amended after it is signed. If a person’s treatment preferences change, they must make a new statement.
The MHW Act stipulates that an authorised psychiatrist must take into account a patient’s advance statement of preferences when making a treatment decision (s 89(4)(c)). All mental health staff should be aware of the preferences of any patient they are providing treatment or care to, and document their consideration of these preferences throughout the period of treatment, care and support.
An authorised psychiatrist may only make a treatment decision that is not in accordance with the treatment preferences expressed in a patient’s advance statement of preferences if they are satisfied that the patient’s preferred treatment is either not clinically appropriate or is unable to be provided at the designated mental health service despite all reasonable efforts being made to provide the preferred treatment (s 90)). They must inform the patient as soon as practicable, both orally and in writing, and provide written reasons within 10 business days after the decision is made.
Decision-makers will also have regard to an advance statement of preferences in making a range of other decisions, including when making a TTO or TO; making a treatment decision for a person, giving or reviewing a second psychiatric opinion; granting a leave of absence; authorising restrictive interventions; or disclosing a person’s health information without consent.
An advance statement that was made before 1 September 2023 and has not been revoked will be treated as an advance statement of preferences under the MHW Act and will remain in effect unless it is revoked or a new statement is made.
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A nominated support person is appointed by a person experiencing mental illness (MHW Act pt 2.6). The role of a nominated support person takes effect when the person who appointed them becomes a patient under the MHW Act.
A nominated support person for a patient will:
advocate for their views and preferences, including those expressed in an advance statement of preferences;
support them to make and participate in decisions;
advocate for any appropriate supports that would assist them to communicate and participate in decision-making;
support them to understand information and decisions;
support them to communicate their views, preferences, decisions, questions or concerns; and
support them to exercise any rights they have under the MHW Act.
A designated mental health service must take all reasonable steps to find out whether a person has a nominated support person and take all reasonable steps to support the nominated support person to undertake their role.
A nominated support person must perform their role in a way that supports a constructive relationship between the patient and the designated mental health service personnel.
A designated mental health service should consult with a nominated support person in a number of specific circumstances such as when an authorised psychiatrist is contemplating the making of a TTO, making an application to the MHT for a TO or making a treatment decision for the patient.
A person can appoint a nominated support person at any time, provided they understand what that means and the consequences of making someone their nominated support person.
A nomination must be:
in writing and state the name and contact details of the nominated support person;
signed and dated by the person making the nomination; and
witnessed by another adult and include a statement by the witness stating that they believed the person making the nomination understands what it is, understands the consequences of making it and how to revoke it, and the person appears to have made the nomination of their own free will. They must also state they observed the person signing it and that they are an adult.
A nomination is made when the nominated support person signs the acceptance form.
Forms are available at www.health.vic.gov.au/mental-health-and-wellbeing-act-handbook/supported-decision-making/nominated-support-persons.
These include the Nominated Support Person form, as well as forms to revoke the appointment, or for a nominated support person to resign their appointment.
Similarly, a nominated support person will be informed when any of these situations arise.
Some patients may not have a nominated support person. The MHW Act requires a designated mental health service to support the patient to make decisions and participate in decision-making, understand information and their rights and communicate their views, preferences, questions or decisions.
A patient may be supported by a non-legal mental health advocate or their family, carer or other supporters of their choosing.
Introduction
Chapter: 8.4: Mental illness
Contributor: Kate Windmill, Director of Legal Practice, Mental Health Legal Centre
Current as of: 1 September 2024
Law Handbook Page: 733
Next Section: Mental health treatment, capacity and consent
