Introduction to the Mental Health Act 2014

Introduction to the Mental Health Act 2014

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, the Guardianship and Administration Act 1986 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.

In this section read about:

About the Mental Health Act

The key legislation covering treatment of people with mental illness is the Mental Health Act 2014 (Vic), which repeals and replaces the Mental Health Act 1986 (Vic) and is the culmination of many years of development and consultation by the Victorian government.

It provides a legislative scheme for the assessment and treatment of people with mental illness within the public health system, including prescribed hospitals and public health services under the Health Services Act 1988 (Vic) and the Victorian Institute of Forensic Mental Health.

It also provides for the appointment of the Chief Psychiatrist and community visitors, continues the Institute and establishes the Mental Health Tribunal (replacing the Mental Health Review Board) and the new Mental Health Complaints Commissioner.

Focus of new Act

The Mental Health Act came into effect on 1 July 2014. It sets out a framework intended to promote recovery-oriented practice, minimise compulsory treatment and protect and support the rights of people living with mental illness. These include rights to:

  • make advance statements
  • communicate privately with people outside a mental health service, including lawyers specifically, and have visitors
  • nominate support people, who can receive information and support decision-making
  • request second psychiatric opinions
  • be given a statement of rights when being assessed or having an order made about their treatment for mental illness.

Changes to the law

The new Mental Health Act sets out new procedures for the examination of people who appear to have mental illness, and for compulsory assessment and treatment orders. There is some change to the process, as well as the terminology. What used to be known as reviews and recommendations, and involuntary treatment orders are now assessment orders, temporary treatment orders and treatment orders. Each of these orders can be community or inpatient orders.

Other changes include some variation to the treatment criteria, a clarification of the presumption of capacity to consent to treatment (as well as guidelines for deciding), and newly articulated rights such as to make advance statements, have nominated persons to support decision-making, and use a legislative process to obtain a second opinion. It is unclear whether the former ‘treatment plans’ will be subsumed into these statement of rights.

For more information see Assessment and treatment orders.

Old and new terminology in the legislation

Under the old Act In the new Act Section/part
Mental Health Review Board (MHRB) Mental Health Tribunal (MHT) Part 8
Involuntary treatment Compulsory treatment Part 4 Compulsory Patients
Involuntary patient

Compulsory patient – a person who is subject to:

(a) an assessment order
(b) a court assessment order
(c) a temporary treatment order
(d) a treatment order.

s. 3
Request and recommendation

Assessment order

  • 24 hrs or 24 hrs after admission (and possibly up to 96 hours) for inpatients
  • made by doctor or mental health practitioner if person meets assessment order criteria, allows for compulsory examination and detention (if inpatient)

Note: Criteria only requires a person to ‘appear to have mental illness’.

Part 4, Division 1
Involuntary treatment order

Treatment order (community or inpatient)

  • temporary treatment order (authorised psychiatrist, 28 days max – or potentially 42 if the tribunal extends it in light of exceptional circumstances)
  • treatment order (Mental Health Tribunal, if <16yo, max 3 months, if 16 and over, duration max 12 months community, 6 months inpatient)
Part 4, Division 4
Appeal Application for revocation s. 60
Treatment plan [No equivalent, but see statement of rights regarding process, advance statements, nominated persons, and Part 5] Part 3 Protection of rights, Part 5 Treatment
Treatment criteria

Treatment criteria

The treatment criteria for a person to be made subject to a temporary treatment order or treatment order are:

(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.

s. 5
Treatment criteria

Advance statement

An advance statement is a document that sets out a person's preferences in relation to treatment in the event that the person becomes a patient.

Part 3, Division 3
Treatment criteria

Nominated person

The role of a nominated person in relation to a patient is to:

(a) provide the patient with support and to help represent the interests of the patient, and
(b) receive information about the patient in accordance with this Act, and
(c) be one of the persons who must be consulted in accordance with this Act about the patient's treatment, and
(d) assist the patient to exercise any right that the patient has under this Act.

Part 3, Division 4
Treatment criteria

Statement of rights

A statement of rights is a document in an approved form that:

(a) sets out a person's rights under this Act while being assessed or receiving treatment in relation to his or her mental illness, and
(b) contains information as to the process by which the person will be assessed or receive treatment.

Part 3, Division 1
Treatment criteria

Mental Health Complaints Commissioner

The Mental Health Complaints Commissioner will accept, assess, manage, investigate and endeavour to resolve complaints about public mental health service providers.

Part 10 Complaints, Division 1
Treatment criteria

Patient

A patient is:

(a) a compulsory patient
(b) a security patient, or
(c) a forensic patient.

s. 2

Key elements of the new Act

Mental health principles and rights

A core part of the new 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 will require careful balancing with the increased recognition of the role of support people (such as family members and carers) in support decision-making. Section 346 deals with disclosure of health information.

Presumption of capacity

The new 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).

Informed consent

For the purposes of treatment or medical treatment given in accordance with the Mental Health Act, under s. 69(1) a person gives informed consent if they:

  • have the capacity to give informed consent to the treatment or medical treatment proposed
  • have been given adequate information to enable the person to make an informed decision
  • have been given a reasonable opportunity to make the decision
  • have given consent freely without undue pressure or coercion by any other person, and
  • have not withdrawn consent or indicated any intention to withdraw consent.

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 Tribunal

The Act establishes the Mental Health Tribunal, replacing the Mental Health Review Board. The new tribunal continues to play the role of independent decision-maker, but differs from the former board in the powers it holds.

Two of the main changes are that:

  • approval must be sought from the tribunal before administering electroconvulsive treatment, except if there is informed consent, and
  • only the tribunal can make a treatment order – the former board reviewed and confirmed rather than made the orders.

New Mental Health Complaints Commissioner

The Act creates the new role of Mental Health Complaints Commissioner, who has a variety of functions, including to accept, assess, manage and investigate complaints relating to mental health service providers, to endeavour to resolve complaints in a timely manner using formal and informal dispute resolution, to issue compliance notices, provide advice, make the complaints process available and accessible, to provide information, education and advice to mental health service providers about their responsibilities and to assist consumers and others to resolve complaints directly.

People accessing mental health services will still have the right to pursue complaints and appeals through existing bodies and mechanisms, with referral processes from some of those bodies in place. The Chief Psychiatrist continues to play a role, including in the development of codes of conduct.

More information

Assessment and treatment orders

Rights of people receiving treatment for mental illness

Additional resources

See the Department of Health website for:

For information about mental health treatment and services see: