About the Mental Health Act 2014 and its principles

The Mental Health Act 2014 (Vic) provides 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 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:

  • minimise the use and duration of compulsory treatment
  • promote supported decision making and recovery-oriented practice
  • increase safeguards to protect a person’s rights and dignity
  • ensure compulsory treatment is provided in the least restrictive and least intrusive manner
  • better facilitate carer and family involvement in treatment and care
  • encourage continuous improvement in the public mental health system.

It includes articulating a person’s rights to:

  • assessment of and treatment for mental illness in the least restrictive way possible, consistent with their rights to autonomy and dignity (s. 11(1)(a) and (e))
  • be presumed to have the capacity to make their own decisions about treatment (s. 70)
  • make and be supported to make their own decisions about treatment where possible (s. 11(1)(a) and (c))
  • make decisions that involve a degree of risk (s. 11(1)(d))
  • make an advance statement that sets out the person’s views and preferences about treatment that must be considered before compulsory treatment can be given (ss. 19–22)
  • communicate privately with people outside a mental health service, including lawyers specifically, and have visitors (ss. 14–18)
  • nominate a person, who can receive information and support the person to make decisions and who must be consulted at key points under the Act (ss. 23–27)
  • request second psychiatric opinions (s. 79)
  • only be subjected to restrictive interventions such as restraint and seclusion in limited circumstances and after all reasonable and less restrictive options have been tried or considered (s. 105)
  • be given information and have it explained in a way that the person is best able to understand (s. 8).

The Act also has greater recognition of the role of family members, carers and others in supporting a person with mental illness.

Some of these rights are reflected in the objectives at section 10 of the Act.

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Mental health principles

Another key element of the new framework under the Act is the inclusion of mental health principles at section 11(1) of the Act.

Mental health service providers and other individuals and bodies which are performing functions or exercising powers under the Act must have regard to these when providing those services, performing those functions and exercising those powers (s. 11(2) and (3)).

Rights of people receiving mental health services

The mental health principles articulate specific rights for all people receiving mental health services, regardless of age and their status as either compulsory or voluntary under the Act.

Section 11(1) provides that a person receiving mental health services should:

  • be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred
  • be provided with mental health services with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life
  • be involved in all decisions about their assessment, treatment and recovery and be supported in making or participating in those decisions and their views and preferences should be respected
  • be allowed to make decisions about their assessment, treatment and recovery that involve a ‘degree of risk’
  • have their rights, dignity and autonomy respected and promoted
  • have their medical and other health needs (including any alcohol and other drug problems) recognised and responded to
  • have their individual needs (including culture, language, communication, age, disability, religion, gender, sexuality or other matters) and characteristics (including Aboriginal culture and identity) recognised and responded to
  • (if they are an Aboriginal) have their distinct culture and identity recognised and responded to
  • (if they are a child or young person under 18 years old) have their best interests recognised and promoted as a primary consideration, including receiving services separate from adults, whenever this is possible.

Rights of family members, carers and support people

Additional mental health principles also provide explicit recognition and respect for the rights and role of some family members and carers of a person receiving mental health services.

Section 11(1) requires that:

  • children, young persons (under 18 years old) and other dependents of persons receiving mental health services should have their needs, wellbeing and safety recognised and protected, and
  • carers (including children) for persons receiving mental health services should be involved in decisions about assessment, treatment and recovery, whenever this is possible, and should have their role recognised, respected and supported.

The definition of ‘carer’ is the same as in the Carer’s Recognition Act 2012 (Vic). This is a person (regardless of their age) who provides ‘ongoing support, assistance or personal care’ to another person because of that person’s mental illness, disability, chronic medical condition or because they are older, and will depend on the nature of their relationship and whether it can be defined as a ‘care relationship’.

Just because someone is the spouse, partner, parent, child or relative of the person does not necessarily mean they are a ‘carer’, nor does the fact that they live with them. Under the Mental Health Act, ‘carer’ does not include a parent of a child under the age of 16 years.

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Promoting supported decision-making and recovery-oriented practice

The Mental Health Act 2014 (Vic) promotes supported-decision making and recovery-oriented practice for people receiving mental health services.

Focus on supported decision-making

The principles of the Act reflect a shift in the provision of mental health services towards a focus on self-determination where a person is entitled to make their own decisions about treatment including decisions that involve risk (the ‘dignity of risk’).

They also reflect a move away from a focus on substitute decision-making (where decisions about treatment are made by someone else, such as their treating psychiatrist), towards supported decision-making (where the person makes the decision themselves and can be supported to do so).

These principles are also reinforced by the provisions relating to capacity and consent to treatment at sections 68–71, which include that a person is presumed to have the capacity to give informed consent to treatment and can make decisions that others may regard as unwise. They also mean that a person may be able to receive some of their treatment on a voluntary basis even if they are subject to a compulsory order.

Section 71 also effectively limits the treatment a person can be given against their wishes; only when it is the least restrictive in the circumstances, as determined by a range of factors, in particular the person’s own views and preferences.

The Act also provides new tools for supported decision-making, including:

  • advance statements (ss. 19–22) – a document that a consumer can write which sets out their views and preferences about treatment if they are made subject to compulsory treatment. An advance statement must be genuinely considered and respected by decision-makers such as the authorised psychiatrist (see s. 46(2)(a)(ii), s. 71(4)(b), s. 73) and the Mental Health Tribunal (s. 55(2)(b))
  • nominated persons (ss. 23–27) – a person that a consumer can appoint who can provide them with support and information, help them exercise their rights, and who must be consulted at various times if the person is subject to compulsory treatment
  • second psychiatric opinion (ss. 78–89) – which can be sought from any psychiatrist and whose views about the application of the treatment criteria, or any changes to the person’s treatment must be genuinely considered by their psychiatrist if they are subject to compulsory treatment.

In addition, the new Independent Mental Health Advocacy service (IMHA) can support people who are receiving compulsory psychiatric treatment to have as much say as possible about their assessment, treatment and recovery.

Recovery framework

Promoting recovery-oriented practice is a fundamental part of the legislative scheme introduced by the Mental Health Act 2014 and is an important concept for lawyers and advocates to understand. ‘Recovery’, though not defined in the Act, is about ensuring the person is put at the centre of their treatment and care.

As the (then) Minister for Mental Health noted in her Second Reading Speech when the legislation was introduced to parliament:

‘Recovery is about maximising individual choice, autonomy, opportunity and well-being during a person’s life and accordingly is a self-defined process that is highly individual’ (p. 471)

The Department of Health and Human Services’ Framework for recovery-oriented practice (2011) which identifies the principles, capabilities, practices and leadership that should underpin a recovery-oriented approach to mental health service delivery states that recovery: ‘encompasses notions of self-determination, self-management, personal growth, empowerment, choice and meaningful social engagement’ (p. 2).

Unlike a clinical or ‘biomedical’ concept of recovery, which focuses on a particular ‘outcome’ such as where the symptoms of mental illness are reduced or absent, there is no one definition of what recovery means in a mental health context.

Rather, it can sometimes be described as an individual ‘journey’, unique to each person. It is defined ‘by the person’ and is ‘informed by the person’s unique strengths, preferences, needs, experiences and cultural background’ (​Slade, 2009, 100 ways to support recovery: a guide for mental health professionals).

In the Act, recovery is explicitly referred to in the mental health principles (ss. 11(1)(b), 11(1)(c), 11(1)(d)). It is also reflected in the obligation on the authorised psychiatrist and the Mental Health Tribunal to have regard to a person’s own individual recovery goals and views and preferences about treatment and in giving effect to ‘least restrictive’ treatment, even when the person may be subject to an order for compulsory treatment.

Other safeguards in the Act

The principles of least restrictive treatment and promotion of autonomy and dignity are reflected in and supported by other reforms in the Act including:

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For more information about mental health treatment and services, see the Independent Mental Health Advocacy service (IMHA) website.