Applying the mental health principles and the person’s views, preferences and recovery goals

When exercising any function or power under the Mental Health Act 2014 (Vic), the Mental Health Tribunal must have regard to the mental health principles (s. 11(3)). This includes that a person should be able to make decisions about their assessment, treatment and recovery that involve a degree of risk.

A range of specific factors must also be applied by the tribunal when making certain decisions. Section 55(2) provides that in making a treatment order – both deciding whether the treatment criteria apply and determining its type and duration – the tribunal must have regard, ‘to the extent that is reasonable in the circumstances’, to a range of factors including:

  • the person’s views and preferences about treatment (including in their advance statement if they have one)
  • their reasons and any recovery outcomes they want to achieve
  • if a person has a nominated person or guardian, that person’s views
  • the views of a carer or parent in certain circumstances.

For hearings about electroconvulsive treatment (ECT), the tribunal must have regard to other specific factors relevant to that criteria. See electroconvulsive treatment (ECT).

Practice tips – tribunal application of the mental health principles

  • When your client wants to talk about their preferred treatment, the tribunal will occasionally raise the objection that they cannot make treatment decisions. Directing the tribunal to their obligation to consider the views and preferences of your client about treatment is a helpful way of overcoming this objection.
  • Applying these principles may mean, for example, the tribunal places a greater weight on the person’s desire to cease treatment because the side effects are so severe, than on the evidence the service puts forward about the need for treatment or the seriousness of the consequences said to arise without such treatment. See case examples in Treatment criteria at s. 5(b).
  • It may also be more willing to give a person the opportunity to voluntarily manage their mental health with their own preferred treatment and ‘risk’ a potential relapse at some point in the future. See case examples in Treatment criteria at s. 5(d).

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