Mental health system

Mental illness is still not well understood in the community. There is confusion about what it means and how it can be managed. Most people with a mental illness are treated voluntarily. But some people may need to be treated, even though they do not agree to it, usually because of the nature of their illness.

The law on the treatment of people with a mental illness and their rights is set out in the Mental Health Act 1986. People have different rights depending on whether they are voluntary or involuntary. It is important that people understand their rights. 

Mental illness

A mental illness is a medical condition where a person’s thought, mood, perception or memory is significantly disturbed. Some examples are:

• depression
• schizophrenia
• anxiety disorders.

You are not mentally ill just because:

• of your political, religious, philosophical or sexual beliefs or activities
• you are involved in sexual, immoral or illegal conduct
• you are intellectually disabled
• you have an anti-social personality
• you belong to a particular economic, social, cultural or racial group.

You are not described as being mentally ill just because you take drugs or alcohol. However, if your mind or body is seriously affected by you taking drugs or alcohol this could be taken as a sign that you are mentally ill, whether the effect is permanent or temporary.

Being diagnosed with a mental illness

Only a doctor can decide whether you have a mental illness and only after a proper assessment. Once you have been diagnosed as having a mental illness you can be given treatment.

You can be treated as a 'voluntary' (or informal) patient, or as an 'involuntary' patient. A voluntary patient can be admitted to hospital, but is free to leave whenever they want. You may be treated against your will. This would make you an involuntary patient.

Involuntary patients

Involuntary means against your will. You can be admitted to and held in a mental health service as an involuntary patient if each of the following apply: 

• you appear to be mentally ill
• your mental illness requires immediate treatment and you can get treatment if you are put on an involuntary treatment order (such as being admitted to a mental health service, like a hospital)
• because of your mental illness, involuntary treatment is needed for your health or safety, or to protect the public
• you have refused or cannot give consent to the treatment you need for your mental illness

• you cannot get proper treatment for your mental illness in a way that gives you more freedom.

If you are an involuntary patient, this means that you can be treated for a mental illness against your wishes. There are set rules that have to be followed before someone can be made an involuntary patient.

Community and involuntary treatment orders

If a doctor examines you and believes you fit the conditions of an involuntary patient, they can recommend that you be placed on:

• a community treatment order, requiring you to get treatment for your mental illness while you are in the community
• an involuntary treatment order, requiring you to get treatment in an approved mental health service, such as a hospital.

Once the order has been made you must be reviewed by an authorised psychiatrist within 24 hours to decide whether you should be:

• taken off the order
• treated in the community and released on a community treatment order
• cared for in an approved mental health service on an involuntary order.

Treatment plans

If you are put on an order, an authorised psychiatrist must prepare a written plan of how you will be treated for your mental illness. The plan must be reviewed regularly and changed when needed.

When the authorised psychiatrist makes or reviews a treatment plan, they must consider:

• your wishes, where possible
• unless you disagree, the wishes of any guardian, family member or primary carer who is caring for or supporting you
• if the treatment is only to improve and maintain your health or wellbeing
• any beneficial alternative treatment available
• the type and seriousness of any significant risks with the treatment or any alternative treatment
• any other matter set out by law.

If you are on an involuntary treatment order, your treatment plan must describe the treatment you will receive there.

If you are on a community treatment order, the treatment plan must contain:

• what treatment you are to receive
• who your case manager is or where you are to be treated
• when you are required to attend to receive treatment
• how often your supervising medical practitioner must submit a written report about your treatment to the monitoring psychologist.

A treatment plan may contain anything else the authorised psychiatrist thinks is appropriate. You must be given a copy of your treatment plan and any changes made to it. The treatment plan must be discussed with you.

Your rights

If you do not agree with the type of treatment you are getting, talk to your case manager or psychiatrist. You have the right to get a second opinion about the treatment and its possible effects on you. This should be free in the public system.

Mental Health Review Board

The Mental Health Review Board (link below) is an independent review tribunal that conducts reviews and appeals of involuntary treatment orders. Although it has legal powers, it is not as formal as a court. It has members who are psychiatrists, lawyers and community members.

The Mental Health Review Board can:

• decide whether you meet the requirements to be an involuntary patient
• decide that you should be on a community treatment order instead of an involuntary treatment order
• take you off a community or involuntary treatment order
• review your treatment plan, but not order a change of a particular type of treatment.

The board will look at reports of your mental health, your treatment and information about your whole life situation. You have the right to actively take part in the hearing and have your say.

More information

Powers of attorney and guardianship

How we can help

Call Victoria Legal Aid’s (VLA) Legal Information Service for free information over the phone about the law and how we can help you with your legal problem. You can speak to a legal information officer in English or ask for an interpreter. Phone (03) 9269 0120 or 1800 677 402 (country callers), Monday to Friday from 8.45 am to 5.15 pm.

VLA’s other free legal services include:

• advice at VLA offices and other locations across Victoria
• advice at many hospitals (psychiatric units)
• lawyers who are on ‘duty’ to help at many courts and tribunals, including Mental Health Review Board hearings.

For some matters we can provide you with a lawyer to help you run your case.

To find out more about any of our legal services see What we do.

Who else can help?

The Mental Health Legal Centre provides a free and confidential legal service to anyone in Victoria who has experienced mental illness, where their legal problem relates to their mental illness. Call the centre’s telephone advice line on (03) 9629 4422 or 1800 555 887 (country callers) to speak with a lawyer about your issue. The advice line is open between 3 pm and 5 pm, Monday, Wednesday and Friday.

Your local community legal centre (CLC) can give you legal information and advice. Most CLC services are free. See the Community Law website for more information and CLC contact details.

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