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 The Mental Health Act 2014 is the law that describes how and when human rights can be restricted for people in a mental health context. It’s most commonly used by:
Compulsory detention & treatment would be illegal without the Mental Health Act. THE MENTAL HEALTH ACT IS DISCRIMINATIONThe Mental Health Act is lawful in Australia, but it breaches our rights under international law, most importantly the right to be treated equally under the law (freedom from discrimination). The Act is discriminatory because people are treated less favourably on the basis of a protected characteristic: mental health challenges and/or psychosocial disability.
We think the Mental Health Act should be repealed. VMIAC does not support the Mental Health Act. One of our most important strategic goals is to eventually abolish this discriminatory legislation. Like any other citizen, we should be able to say yes or no to health treatments, we should never be detained unless we have committed a crime, and restrictive practices should be abolished. SOME COMMON WAYS THE ACT RESTRICTS OUR RIGHTSThe Mental Health Act makes it lawful to restrict many of our rights. Some of the most common restrictions include:
LIMITS, PROTECTIONS & OVERSIGHTThe Mental Health Act contains strict limits to how, when and why our rights can be restricted. These are supposed to make sure that the law is followed, and rights are only restricted in the ways allowed. Sometimes these limits and protections work well, and sometimes they don’t work. Criteria for compulsory treatmentAll four criteria in the Act must be met before we can be detained or treated against our will. These include:
Additional rightsThe Mental Health Act creates some additional rights for patients affected by the Act. These include:
The Mental Health Act creates some extra rights, but these can never replace our fundamental human rights. Sometimes mental health services say that these are our only rights when we are a mental health patient. But this is misleading. We retain all of our fundamental human rights, and the service is only allowed to restrict them in very specific ways. We wouldn’t need these extra rights if our fundamental rights were upheld. Protections for our rightsProtections for consumer rights can be found from the following organisations and statutory bodies:
If you are assisting a client living with mental illness, there may be any number of laws to consider, depending on the nature of their legal issue. These may include the Victorian Charter of Human Rights and Responsibilities 2006 (Vic), the Guardianship and Administration Act 2019 (Vic) and those dealing with mental impairment and criminal responsibility. However this section focuses on the treatment of mental illness, particularly compulsory (involuntary) treatment, and related issues covered by the Mental Health Act 2014 . About the Mental Health ActThe Mental Health Act 2014 (Vic) (the Act), is the key legislation covering mental health treatment. It replaced the Mental Health Act 1986 (Vic), and was the culmination of many years of development and consultation by the Victorian government. The Act provides for the assessment and treatment of mental illness within the public health system, including for people to be treated compulsorily if required criteria are met. The Act also provides safeguards for compulsory treatment, such as the Chief , the Mental Health (replacing the Mental Health Review Board) and the Mental Health Complaints . The Act regulates designated mental health services, which are hospitals and public health services under the Health Services Act 1988 (Vic) and the Victorian Institute of Forensic Mental (Forensicare). Focus of the ActThe Mental Health Act came into effect on 1 July 2014. Whilst it authorises compulsory treatment in certain circumstances, the Act is intended to promote recovery-oriented , minimise compulsory treatment and protect and support the rights of people living with mental illness. These include rights to:
Key elements of the ActMental health principles and rightsA core part of the framework is the inclusion of mental health principles in the Act, which a mental health service provider must have regard to when providing mental health services (s. 11(2), and any person performing any duty or function or exercising any power under the Act must have regard to (s. 11(3)). The principles include the provision of mental health services in the least restrictive way possible, promoting recovery and the best possible therapeutic outcomes and participation and support in decision-making. The degree to which this section can be relied upon as a basis for any legal action is yet to be tested. Reflecting a shift in philosophy, the principles contain a recognition that people should be entitled to make decisions that to others may appear to involve a ‘degree of risk’. Alongside the mental health principles are specific rights, such as to private communication, advance statements, having nominated persons, second psychiatric opinions and information about rights and treatment, through a statement of rights. People receiving mental health services have rights to privacy and confidentiality, but this requires careful balancing with the increased recognition of the role of support people (such as family members and carers) to support decision-making. Section 346 deals with disclosure of health information. Presumption of capacityThe Act sets out clearly that a person is deemed to have capacity to give informed consent if the person understands, is able to remember and use information relevant to the decision and is able to communicate their decision (s. 68(1)). The Act sets out principles to guide the determination of capacity in s. 68(2). A person on a treatment order can still be given treatment against their wishes, even if they have capacity, if certain criteria are met (s. 71). Section 69 of the Act, states that a person gives informed consent to treatment or medical treatment under the Act if they:
Section 69(2) further defines when a person has been given adequate information to make an informed decision. For more information see Rights of people receiving treatment for mental illness. Mental Health TribunalThe Mental Health is an independent tribunal established by the Act. The Tribunal replaced the Mental Health Review Board. The Tribunal conducts hearings to decide whether a person meets the criteria for compulsory mental health treatment under the Act. Mental Health Complaints CommissionerThe Mental Health Complaints is an independent body established under the Act. The role of the commissioner is to safeguard people’s rights under the Act, resolve complaints about Victorian public mental health services, and recommend improvements. Assessment and treatment orders Rights of people receiving treatment for mental illness Additional resourcesIndependent Mental Health (IMHA) supports people who are receiving, or at risk of receiving, compulsory mental health treatment to make decisions and have as much say as possible about their assessment, treatment and recovery. This service is an integral component in realising the reforms and vision of the Mental Health Act 2014. IMHA advocates are based in Melbourne, Geelong, Bendigo and Dandenong, but support people across Victoria. The service is independent, free and confidential. See also the Department of website for: For information about mental health treatment and services see: |
What happens if a worker breaches the mental health Act?
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