Mental Health Treatment in Victoria: know your rights and the law
The Mental Health Act (2014) is the current law governing mental health treatment in Victoria. The Act promotes voluntary treatment (whereby a person willingly engages in treatment) in preference to compulsory treatment (person is compelled to engage) and seeks to minimise the use and duration of compulsory treatment and ensure treatment is provided in the least restrictive and least intrusive way possible.
It also encourages and allows consumers to be informed and involved in their treatment and care and welcomes the involvement of carers in decision making.
There are Key Principles that guide the provision of mental health services in Victoria. Health service providers must have regard to these principles and consumers and carers should be made aware of them.
Summary of key messages
- Assessment and treatment is to be provided in the least restrictive way possible
- People are supported to make or participate in decisions about assessment, treatment and recovery (including decisions that involve a degree of risk)
- Rights, dignity and autonomy to be respected and promoted
- Holistic care (which encompasses mental and physical health) is to be provided in response to individual needs
- Best interests of children and young persons receiving mental health services to be promoted
- Needs, wellbeing and safety of children, young persons and other dependents to be protected
- Carers to be involved in decisions about assessment, treatment and recovery whenever possible
Download a Quick Guide on how the Mental Health Act benefits patients, carers and clinicians.
To read the Act or Regulations go to: www.legislation.vic.gov.au
Mental health treatment and your rights
The Mental Health Act (2014) outlines a person’s rights during assessment and treatment for their mental health issues in Victoria. To find out more about your rights as a patient under the Act, refer to the Statement of Rights.
Disclosure of health information
The Mental Health Act mandates when patients' mental health information must and may be disclosed.
The Health Records Act protects health information that is held by public and private health service providers across Victoria. For further information contact the Office of the Health Services Commissioner.
The Mental Health Act promotes voluntary treatment in preference to compulsory treatment wherever possible. The Act also seeks to minimise the use and duration of compulsory treatment to ensure that the treatment is provided in the least restrictive and least intrusive manner possible. This is achieved by introducing specific criteria for compulsory treatment, creating Treatment orders that operate for a fixed duration and requiring timely oversight by an independent Mental Health Tribunal.
The following steps must be taken when establishing compulsory treatment orders:
- Assessment Orders
- Temporary Treatment Orders
- Treatment Orders
- An Assessment order authorises the compulsory assessment of a person to determine whether the person needs compulsory mental health treatment.
- A registered medical practitioner or a mental health practitioner may make an Assessment order if they have examined the person and are satisfied that the criteria for an Assessment order apply to the person.
- A registered medical practitioner or mental health practitioner may only make an Assessment order within 24 hours of examining the person.
Following an Assessment order, treatment may only be provided for the person's mental illness if:
- they give informed consent to treatment, or
- where the treatment is required as a matter of urgency to prevent serious deterioration in their mental or physical health or serious harm to the person or another person.
For further information about Assessment Orders, please click here.
Temporary Treatment Orders
- Temporary treatment orders authorise the provision of compulsory mental health treatment.
- An authorised psychiatrist may make a Temporary treatment order if the treatment criteria apply to a person subject to an Assessment Order or a Court Assessment Order.
For information regarding Temporary Treatment Orders and Treatment Orders please click here.
Compulsory treatment and supportive decision making
Supported decision making is central to recovery-oriented practice. The Mental Health Act 2014 enables compulsory patients to make decisions about their treatment and to determine their individual path to recovery.
The Mental Health Act promotes supported decision making through:
- advanced statements
- nominated persons
- second psychiatric opinions and
Give patients greater control over treatment and informs about patients treatment preferences and enables a person to record their treatment preferences in the event that they become unwell and require compulsory mental health treatment.
- can be made at any time provided a person understands what an advance statement is and the consequences of making it
- must be signed, dated and witnessed by an authorised witness which includes registered medical practitioner, mental health practitioner, person authorised to witness statutory declarations
- will be flagged on CMI to assist services to locate advance statements
- must be distributed to a health professional, healthcare team or hospital
A person can nominate a person to receive information and support them while they are a compulsory patient. A nominated person:
- receives information and supports patients
- must be willing, available and able to fulfil the functions and responsibilities of the nominated person
- may be under 18
Second psychiatric opinion
A second psychiatric opinion can assist patients to understand and make decisions about their treatment.
- Compulsory patients can also seek a second psychiatric opinion about their treatment at any time.
- Compulsory and security patients can seek a second psychiatric opinion about whether the treatment criteria apply.
- A second psychiatric opinion promotes patient self determination and a dialogue between clinicians and patients about treatment.
Mental health advocates support patients to make or participate in decisions about their assessment, treatment and recovery and to understand and exercise their rights.
- Advocates will assist patients to understand and exercise their rights and support them to participate in decisions about their assessment, treatment and recovery
- Consultation with key stakeholders is occurring to inform the development of the advocacy service.
For further information click here.
Mental Health Tribunal
The Mental Health Tribunal determines whether the criteria for compulsory mental health treatment (as set out in the Mental Health Act 2014) is required and if so will be responsible for ensuring someone is on a Treatment Order.
The Mental Health Tribunal will:
- make Treatment Orders
- decide the initial setting where treatment will be provided (inpatient or community)
- decide the duration of the Treatment Order
- be comprised of a panel of three members (legal, community and psychiatrist or registered medical practitioner)
- encompass general and specialist hearing panels
- ensure a psychiatrist sits on panels for ECT and neurosurgery for mental illness hearings
Mental Health Complaints Commissioner
The Mental Health Complaints Commissioner is an independent voice working for positive change in Victoria's mental health system.
The Mental Health Complaints Commissioner can:
- assist people to speak up about their concerns
- listen and work to resolve complaints about Victorian public mental health services
- support Victorian public mental health services to develop effective responses to the concerns and complaints of people accessing their services.
- use what they learn from complaints to assist mental health services make positive changes
Office of the Health Services Commissioner
The Health Services Commissioner:
- provides a free and confidential service
- helps people make their concerns known to health services providers
- protects your right of access to your health information
- conciliates formally or informally, between consumers and providers of services
- assists in the resolution of complaints
- provides information regarding the Health Records Act
Office of the Victorian Privacy Commissioner
It's important to be aware of your privacy rights under the Information Privacy Act and know what to do if you have a problem. The Federal Privacy Act protects personal information that is collected and handled by Federal Government organisations such as Centrelink and the Australian Taxation Office. For further information contact the Office of the Australian Information Commissioner.
The Office of the Victorian Privacy Commissioner can:
- Answer questions and provide information
- Help you put your complaint in writing
- Help you and the organisation to talk about the problem
Office of the Public Advocate
1300 309 337
The Office of the Public Advocate (OPA) is an independent statuary body established by the Victorian State Government, working to protect and promote the interests, rights and dignity of people with a disability.
- information and advice relating to the rights of people with a disability, their treatment and care
- advice service for the powers of attorney
- consent to medical and dental treatment
For legal advice, contact:
- Legal Aid Victoria on 1300 792 387
- The Mental Health Legal Centre on (03) 9629 4422 or toll free on 1800 555 887.
This information has been taken from the Health Services MH Act 2014 Information Session presentation provided to EDV as well as the Department of Health website.
- Last revision date: Tuesday, 07 February 2017 13:46