How lawyers can help support client rights
It is important that lawyers supporting people who are being assessed for or subject to compulsory treatment understand the various mechanisms under the Act that are designed to allow people to make decisions about their treatment and recovery and to be supported in making those decisions.
By encouraging their clients to create advance statements, consider nominated persons and seek second psychiatric opinions where appropriate, and otherwise exercise their rights under the Act and in other laws, lawyers can play an important role in ensuring that their clients have their views heard and considered, that they are not subjected to unnecessary or unnecessarily restrictive treatment, and that they are given every opportunity to have an active role in decision-making and their own recovery, in a way that meets their wishes.
Mental health principles
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)).
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.
- 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.
The Mental Health Tribunal must apply the mental health principles when performing all its functions, and in particular section 5(d) – whether a person can be treated by less restrictive means.
Supreme Court discussion of the mental health principles
Consistently with the right to self-determination, to be free of non-consensual medical treatment and to personal inviolability, the [s.10] objectives and [s.11] principles emphasise enabling and supporting decision-making, and participation in decision-making, by the person (ss 10(d) and (g), 1(1)(c)), including the exercise of the dignity of risk (s 11(1)(d)). There is emphasis on respecting the views and preferences of the person in relation to decisions about their assessment, treatment and recovery (s 11(1)(c)). Together with the operative provisions of the Mental Health Act, the objectives and principles are intended to alter the balance of power between medical authority and persons having mental illness in the direction of respecting their inherent dignity and human rights.
And at :
the principle in s 11(1)(e) is that ‘persons receiving mental health services should have their rights, dignity and autonomy respected and promoted’. As fully discussed below, the compulsory treatment regime represents a paradigm shift from best-interests paternalism to the least-restrictive kind of treatment, which draws upon elementary human rights concepts. Where reasonable, the views and preferences of the patient, supported if necessary, must be considered. The treatment decision is not to be based upon purely medical grounds but, where appropriate, is to encompass holistic consideration of patients in their entire personal and social setting. The regime gives effect to the support and participation objective (s 10(d)) and principle (s 11(1)(d)), which reflect the right to self-determination, to be free of non-consensual medical treatment and to personal inviolability.
Rights of people receiving mental health services
At each stage, the relevant decision-maker has responsibilities to provide information, explain decisions and options, inform and involve relevant people (such as nominated persons), as well as conducting assessments to decide whether the relevant criteria are met.
The person receiving compulsory mental health services has a number of rights, including rights to:
- make an advance statement
- communicate privately with those outside the mental health service, including lawyers specifically, and have visitors
- nominate support people, who can receive information and support decision-making
- be given a statement of rights when being assessed or having an order made about treatment for mental illness.
Right to communication
Division 2 of Part 3 covers the right of inpatients to get and send uncensored private communication or receive visitors. There is a right to communicate lawfully with any person including seeking legal advice or representation.
Communication is defined in s 14 as:
- sending from, or receiving at, a designated mental health service uncensored private communication which may include communication by letter, telephone or electronic means; or
- receiving visitors at a designated mental health service at reasonable times, including the Australian legal practitioner or nominated person of the inpatient.
The right may be restricted if the authorised psychiatrist is satisfied that this is necessary to protect the health, safety and wellbeing of the person or of another person (s.16). These restrictions must be the least restrictive possible in the circumstances.
The inpatient and relevant support people such as nominated persons, guardians, carers and parents (if the person is under 16) and the Secretary of the Department of Health (previously the Department of Human Services), (if the person is subject to a family reunification order or a care by Secretary ) must be notified of this restriction. The restriction must be monitored regularly. As soon as the restriction is no longer necessary to protect the health, safety and wellbeing of the person or another person, it must be lifted (s. 17)
Some communication cannot be restricted – including with:
- Independent Mental Health Advocacy (see Mental Health Regulations 2014 – reg 5A)
- The Chief Psychiatrist
- Mental Health Tribunal
- Mental Health Complaints Commissioner
- Community Visitors
Statement of rights
If a person is being assessed for, or made subject to, an order for compulsory treatment (temporary or longer term), or their order is being varied, they must be given a copy of the order, and a ‘statement of rights’. This statement is a document that sets out a person’s rights under the Mental Health Act and the process for them being assessed or receiving treatment. This statement is defined in s. 12 and s. 13 of the Act.
When giving the statement, the authorised psychiatrist must also make sure that the person gets a verbal explanation of what the statement is and what is in it, and answers any questions they may have as clearly and fully as possible. If the person is not capable of understanding the information in the statement, further attempts must be made to explain it at another time, when the person is able to understand it.
If the person disagrees with a decision of the Mental Health Tribunal
If the tribunal makes a decision the person disagrees with, they can:
- apply for a revocation of the treatment order
- ask for (in writing) a statement of reasons for decision, and/or
- apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.
- A person has 20 business days after the decision to request a statement of reasons (s. 198). They also have 20 business days from the decision, or from receiving the statement of reasons, to apply to VCAT for a review (s. 201). Part of the process of review may be for the person to request a second psychiatric opinion, which the authorised psychiatrist must consider.
Rights under the Victorian Charter of Rights and Responsibilities
In the Honourable Justice Bell, then President of the Victorian Civil and Administrative Tribunal (VCAT), said: ‘Because treatment orders authorise giving involuntary medical treatment, they necessarily involve serious human rights breaches.’ His Honour held that compulsory mental health treatment engages the following Charter rights:
- the right not to be subjected to medical treatment without consent (s 10(c))
- freedom of movement (s 12)
- the right to privacy (s 13(a)) and
- the right to liberty and security of the person (s 21).
Compulsory treatment also limits the rights to: equality before the law (s 8), and may, in certain circumstances also limit freedom of thought (s 14) and freedom of expression (s 15).
In , Justice Bell of the Supreme Court of Victoria considered that the following Charter rights were engaged when reviewing a decision of the Tribunal authorising compulsory electroconvulsive treatment:
- the right to equality before the law
- the right to be free of non-consensual medical treatment and
- the right to privacy and the right to health.
In discussing the right to equality before the law, Bell J held that the right to be free from discrimination is particularly important for people with mental disabilities. The right to application of the law without discrimination and the right to protection from discrimination were highlighted. He stressed that the Mental Health Act cannot be applied in a way that amounts to discrimination on these bases.
In discussing the right to privacy, Bell J observed that people with mental disabilities are vulnerable to interference in their lives. As such, two aspects of privacy are particularly salient to them. These are the right to self-determination and the right to personal inviolability, which also encompasses the right to be free of non-consensual medical treatment.
His Honour also considered that the right to be free from non-consensual treatment and entitlement to health-related services are both elements of the right to health. His Honour stated at :
the concept of health in the Mental Health Act is broad and recognises the two-way relationship between self-determination, freedom from non-consensual medical treatment and personal inviolability on the one hand and the person’s health on the other. Mental health treatment decision-making is not a simple best-interests trade-off between the person’s autonomy and health because health is a broad concept that relates to the whole person of which the person’s autonomy, while not absolute, is a constitutive element.
His Honour stressed that restrictions on human rights under the Charter must be ‘demonstratively justified’ in line with the least infringement principle if they are to comply with the law.
For case studies and examples see the VLA/Human Right Law Centre Advocacy Guide.
Other rights instruments
International covenants such as the Convention on the Rights of Persons with Disabilities or the Convention on the Rights of the Child can also be useful.
For example, article 37 of the states that detention of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. If your client is under 18, this section can be used to give weight to an argument that a child be either discharged to voluntary status or allowed to go home on a community treatment order.
In discussing the , Justice Bell in emphasised the importance of the Convention and observed that the Mental Health Act had been drafted with the Convention in mind (at ). This includes the right to health, of which Justice Bell said:
There is a two-way relationship between self-determination, freedom from non-consensual medical treatment and personal inviolability on the one hand and personal health and wellbeing on the other. The relationship is highly pertinent for persons with mental disability because they are more vulnerable than most in these vital respects.
The no less restrictive treatment test corresponds to one element of the proportionality requirement which human rights law applies to ensure that interference with the exercise or enjoyment of human rights only occurs when justified. This requirement is specifically included in s 7(2)(e) of the Charter. In the compulsory treatment regime of the Mental Health Act, the test may be understood as a safeguard for the purposes of art 12(4) of the CRPD. The purpose of the test, with other provisions, is to ensure that interference with the exercise of the human right of patients to self-determination, to be free of non-consensual medical treatment and to personal inviolability, which compulsory treatment causes (see above), is justified in human rights terms.
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
- (including children) for persons receiving mental health services should be involved in decisions about assessment, 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 . 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.
Read more about:
(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.
For information about mental health treatment and services see:
- – an online portal containing data on mental health services and reporting on the progress of mental health reform in Australia. The page outlines the data content available in the portal
- the , including electroconvulsive treatment manual, the High Dependency Unit guidelines, compulsory treatment orders, inpatient leave of absence, mechanical restraint, seclusion and sexual safety.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 02 June 2022