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 (Vic), the Guardianship and Administration Act 2019 (Vic) 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 (Vic).

About the Mental Health Act

The Mental Health Act 2014 (Vic) (the Act), is the key legislation covering mental health treatment. It replaced the Mental Health Act 1986 (Vic), and was the culmination of many years of development and consultation by the Victorian government.

The Act provides for the assessment and treatment of mental illness within the public health system, including for people to be treated compulsorily if required criteria are met. The Act also provides safeguards for compulsory treatment, such as the Chief Psychiatrist, the Mental Health Tribunal (replacing the Mental Health Review Board) and the Mental Health Complaints Commissioner.

The Act regulates designated mental health services, which are hospitals and public health services under the Health Services Act 1988 (Vic) and the Victorian Institute of Forensic Mental Health (Forensicare).

Focus of the Act

The Mental Health Act came into effect on 1 July 2014. Whilst it authorises compulsory treatment in certain circumstances, the Act is 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.

Key elements of the Act

Mental health principles and rights

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

Presumption of capacity

The 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

Section 69 of the Act, states that a person gives informed consent to treatment or medical treatment under the Act 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 Mental Health Tribunal is an independent tribunal established by the Act. The Tribunal replaced the Mental Health Review Board. The Tribunal conducts hearings to decide whether a person meets the criteria for compulsory mental health treatment under the Act.

Mental Health Complaints Commissioner

The Mental Health Complaints Commissioner is an independent body established under the Act. The role of the commissioner is to safeguard people’s rights under the Act, resolve complaints about Victorian public mental health services, and recommend improvements.

More information

Assessment and treatment orders

Rights of people receiving treatment for mental illness

Additional resources

Independent Mental Health Advocacy (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.

See also the Department of Health website for:

• Victorian mental health information
• List of mental health services
• Framework for recovery-oriented practice
• Mental Health Act 2014 handbook.

For information about mental health treatment and services see:

• A National Framework for recovery-oriented practice: guide for practitioners and providers
• Mental Health Services in Australia – an online portal containing data on mental health services and reporting on the progress of mental health reform in Australia. The Latest release page outlines the data content available in the portal
• the Chief Psychiatrist's guidelines, including electroconvulsive treatment manual, the High Dependency Unit guidelines, compulsory treatment orders, inpatient leave of absence, mechanical restraint, seclusion and sexual safety.