There are several laws that protect the rights of people being treated for mental illness, including rights to privacy and confidentiality, and other human rights.
The (Vic) sets out particular rights and treatment principles for people who are being assessed for compulsory treatment and who may be placed on compulsory treatment orders. These are found in Part 3 of the Act and have major implications for advocates working with people subject to compulsory treatment.
Mental health principles – Part 3
Another key element 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)). Of note is the recognition that people should be entitled to make decisions that to others may appear to involve a ‘degree of risk’.
Section 11 of the Act sets out the following principles for people receiving mental health services (‘mental health principles’). These are that the person should:
- be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred
- be provided with those 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 participate 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 as to culture, language, communication, age, disability or other characteristics, including Aboriginal culture and identity) recognised and responded to
- (if they are children or young people) have their best interests are the primary consideration, including receiving services separate from adults, where possible
- have the needs, wellbeing and safety of their children or other dependents recognised and protected
- have their carers involved in assessment, treatment and recovery decisions, where possible, and have their role recognised, supported and respected.
The mental health principles in the Act explicitly refer to ‘recovery’ at a number of points (ss. 11(1)(b), 11(1)(c), 11(1)(d)) and can be generally characterised as ‘recovery orientated’.
‘Recovery’ in this context should be distinguished from clinical or ‘biomedical’ recovery in which the symptoms of mental illness are reduced or absent. According to the Victorian Department of Health, ‘recovery’:
- ‘encompasses notions of self-determination, self-management, personal growth, empowerment, choice and meaningful social engagement.’ (Department of Health, 2011, , p. 2)
- is ‘defined by the person and refers to an ongoing holistic process of personal growth, healing and self-determination’ and ‘informed by the person’s unique strengths, preferences, needs, experiences and cultural background’ ( Slade, 2009
Relevance for lawyers
Recovery-oriented practice is a fundamental part of the legislative scheme introduced by the Act and is an important concept for advocates to understand.
By listening to clients and acting on instructions, advocates are very well placed to support clients to achieve self-determination and empowerment, to realise their preferences and to articulate their strengths, preferences, needs, experiences and cultural background.
Recovery-based practice is not clearly defined and for this reason can be challenging to implement. In addition to the advocacy provided for in the Mental Health Act, advocates can consider ways they can develop ‘recovery based’ advocacy. This may involve:
- advocating with services with explicit reliance on ‘recovery’ grounds including through articulating client preferences, needs, experiences, and cultural background
- working in partnership with services to achieve positive ‘person centred’ outcomes for clients, and
- working with clients to rely on and utilise the range of patient rights enshrined in the Act (in particular advance statements, the capacity provisions and nominated people) to articulate goals and preferences.
How lawyers can help support patient 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 law, 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 working towards their own recovery, in a way that meets their wishes.
Making an advance statement is one way for a person to have some control over their future treatment. An advance statement sets out what a person’s preferences are for treatment if they become unwell and require compulsory treatment. Lawyers can assist by explaining how clients can make advance statements (including using pro forma statements, if available), how statements can be used and their legal effect. They can also support people to use their statements when negotiating with mental health services, and when appearing before the .
An advance statement can be made at any time (s. 20). It must be:
- a written statement
- signed and dated by the person making it, and
- witnessed by an ‘authorised witness’.
The authorised witness must include a statement that the person making it understands the statement and the consequences of making it. The authorised witness can be a:
- registered medical practitioner
- mental health practitioner, or
- a person authorised to witness statutory declarations.
Contents of an advance statement
The Act establishes that an advance statement sets out a person’s preferences in relation to treatment (s. 19). Advance statements may be a key tool to enable people to take advantage of the ‘recovery’ focus of the Act. To achieve this object, statements should include client preferences, needs, experiences, goals and strengths.
When a psychiatrist can ‘override’ the statement
The Act sets out a process that should be followed if a psychiatrist proposes to make a treatment decision that conflicts with an advance statement. The psychiatrist must consider the advance statement and may only ‘override’ the person’s wishes where the preferred treatment is not clinically appropriate or not ordinarily provided by the mental health service (s. 73).
If the psychiatrist overrides, the person can ask for written reasons, and must be given these within 10 days of request.
When advance statements may be relevant
Under the Act, there are many situations in which advance statements are relevant. These situations include:
- making a temporary treatment order (s. 46(2)(ii))
- determining whether a temporary treatment order should be in the community or as an inpatient (s. 48(2)(b))
- determining a treatment order application (s. 55(2)(b)
- determine less restrictive treatment options (s. 71(3)), and
- providing second opinions (s. 82(d)).
Revoking an advance statement
A person can revoke their advance statement in writing at any time (s. 21). They must sign and date it and have it witnessed by an authorised witness. The witness must include a written statement that the person understands the consequences of revoking the statement.
A person can also make a new advance statement. This new advance statement has the effect of revoking the previous statement. If a person changes their mind, they cannot amend an advance statement, only make a new one (s. 22).
Rights to communication – Part 3
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, particularly for seeking legal advice or representation.
The right may be restricted if the authorised psychiatrist is satisfied that this is necessary to protect the health, safety and wellbeing of the inpatient or of another person (s.16). The inpatient and relevant support people or representatives must be notified of this restriction, and the restriction must be monitored regularly.
Nominated person – Part 3
A nominated person is somebody who a person nominates (names) to receive information and support them while they are receiving treatment as a compulsory patient under the Mental Health Act (ss. 23–27).
The purpose of the role is to advocate for a patient’s wishes, and to establish their preferences, needs, experiences, goals and strengths. This is not a ‘best interests’ model.
A lawyer can support a person to nominate someone for this role, by explaining this purpose, what the nominated person is expected to do, and how to nominate and revoke nomination.
The lawyer can suggest who may be suitable for this role for the patient, depending on their characteristics, and recommend the patient consider and discuss issues such as confidentiality and collaborative decision-making with the person they intend to nominate.
Role of the nominated person (s. 23)
The nominated person must be consulted about treatment and can:
- provide support to the person subject to the order
- helps represent their interests
- receive information
- help the person to exercise any of their rights under the Act.
Nominating a person (s. 24)
The nomination must:
- be given in writing and signed and dated by the person making the nomination
- give the name and contact details of the person nominated
- include a statement signed by the nominated person that they agree to be nominated
- be witnessed by an authorised witness.
The authorised witness must make a statement that the person nominating understands the nomination and the consequences of making the nomination. The authorised witness can be a:
- registered mental health practitioner
- mental health practitioner, or
- person authorised to witness statutory declarations.
When will the views of the nominated person be relevant?
There are many situations in which a nominated person’s views will be relevant under the Act. Some of these situations include:
- issues relating to assessment orders (s. 32(2), 35(4)(a)(i), 37(3)(c)(i), 40(a)
- when a psychiatrist may make a temporary treatment orders (s. 46(2)(iii)) and whether that order should be in the community or as an inpatient (s.48(2)(c))
- when the Mental Health Tribunal considers whether to make a treatment order (s. 55(2)(c))
- when a person does not give consent to treatment and the psychiatrist believes there is no less restrictive way for the patient to be treated (s. 71(4)(c))
- when a person does not have capacity to consent to treatment and the psychiatrist is giving treatment, in determining whether a treatment would benefit a person (s. 76(2)(b)
- when a psychiatrist is preparing a second opinion and determining whether to recommend any changes to treatment (s. 82(d)(ii)(A)), and
- when the Mental Health Tribunal is considering an application to perform electroconvulsive treatment and whether there is a less restrictive way for the person to be treated (s. 93(2)(c)).
A nomination can be revoked at any time in writing. The revocation must be signed and dated and witnessed by an authorised witness who includes a written statement that the person understands the consequences of revoking the nomination. The person can make a new nomination or the person nominated may have declined to act as a nominated person.
Statement of rights – Part 3
If a person is being assessed for or made subject to a compulsory treatment order (temporary or longer term), or their order is being varied, they must be given a copy of the order, and a ‘’. 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 ss. 12 and 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 the person may have as clearly and fully as possible. If they are 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.
Capacity and consent to treatment – Part 5
A person subject to a treatment order must have their informed consent sought prior to any treatment or medical treatment being given (s. 70). Further, a mental health practitioner, when seeking informed consent for treatment of a person subject to a treatment order, must presume that a person has the capacity to give informed consent (s. 70(2)). Note the Act refers to ‘capacity to provide informed consent’ but here we consider ‘capacity’ and ‘informed consent’ separately.
NOTE: Under the Act, the presumption of capacity raises some key questions including:
- Does the person have capacity to provide informed consent? (s. 68)
- If the person has capacity, has informed consent been sought? (s. 69)
- Does the psychiatrist propose to ‘override’ capacity provisions? (s. 71)
Whether a person has capacity
A person has the capacity to give informed consent (s. 68) if they:
- understand the information he or she is given that is relevant to the decision
- are able to remember the information that is relevant to the decision
- are able to use or weigh information that is relevant to the decision, and
- are able to communicate the decision he or she makes by speech, gestures or any other means.
To assist in understanding whether a person has capacity, the Act sets out the following principles to guide the determination of capacity (s. 68 (2)):
- capacity to give informed consent is specific to the decision that the person is to make
- capacity to give informed consent may change over time
- it should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behaviour
- a determination that a person does not have capacity should not be made only because the person makes an unwise decision, and
- when assessing capacity, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity can be assessed most accurately.
Informed consent to treatment
For the purposes of treatment or medical treatment given under the Act a person givesinformed consent(s. 69(1)) if they have:
- the capacity to give informed consent to the treatment or medical treatment proposed
- been given adequate information to enable the person to make an informed decision
- been given a reasonable opportunity to make the decision
- given consent freely without undue pressure or coercion by any other person, and
- not withdrawn consent or indicated any intention to withdraw consent.
Adequate information for informed consent
A person has been given adequate information to make an informed decision (s. 69(2)) if they have been given:
- an explanation of the proposed treatment or medical treatment including:
- the purpose of the treatment or medical treatment
- the type, method and likely duration of the treatment or medical treatment
- an explanation of the advantages and disadvantages of the treatment, including information about the associated discomfort, risks and common or expected side effects of the treatment or medical treatment
- an explanation of any beneficial alternative treatments that are reasonably available, including any information about the advantages and disadvantages of these alternatives
- answers to any relevant questions that the person has asked
- any other relevant information that is likely to influence the decision of the person, and
- in the case of proposed treatment, a statement of rights relevant to his or her situation.
When a person does not give informed consent
The Act allows the authorised psychiatrist to make a treatment decision for a patient on a temporary treatment order or treatment order (s. 71) if:
- the person does not have capacity, or
- the person has capacity but has refused, and
- there is no less restrictive way for the patient to be treated.
Less restrictive treatment
In determining whether there is no less restrictive way for the patient to be treated the psychiatrist must consider several factors, including the person’s views and preferences about treatment, any advance statement, the views of a nominated person, guardian or other relevant decision-maker or support person (s. 71(4)).
NOTE: Although the presumption of capacity to consent is qualified, and the authorised psychiatrist may still make a treatment decision on behalf of a person who has capacity, people should still be encouraged to assert their right to make treatment decisions in discussion with their treating teams as well as being encouraged to create advance statements (ss. 19–22).
Second psychiatric opinions – Part 5
The Mental Health Act allows ‘entitled patients’ (those subject to a temporary treatment order or treatment order, a security patient or forensic patient) to request a second psychiatric opinion at any time (Part 5, Division 4). Requests for second opinions can also be made by a person the patient asks to do so on their behalf, their guardian, parent (if under 16), or the Secretary of the Department of Health (previously the Department of Health and Human Services), if they are also on a family reunification order or a care by Secretary order.
If an entitled patient seeks a second psychiatric opinion and requests assistance to obtain that opinion, the authorised psychiatrist must ensure that reasonable steps are taken to assist the entitled patient with that request, and a member of staff of a designated mental health service must provide any reasonable assistance required by a psychiatrist giving a second opinion under this Division. The second opinion can be sought from any psychiatrist.
If the second opinion suggests that the criteria for the relevant order are not all met, or recommends changes to current treatment, the authorised psychiatrist must examine the patient as soon as possible after receiving the opinion, assess whether the relevant criteria apply, review the treatment and decide whether to adopt any of the recommendations made in the report. The entitled person can apply for a review by the chief psychiatrist if the authorised psychiatrist decides to adopt none or only some of the recommended changes.
Mental Health Tribunal – Part 8
Although it has legal powers, it is not as formal as a court. It has members who are doctors, lawyers and community members. It does not have to follow rules of evidence and can gather information as it wishes but it must follow rules of procedural fairness and conduct hearings as quickly and informally as it can, as long as it gives proper consideration to the issues before it.
Generally hearings for inpatient orders are held at the mental health service where the person is detained.
The tribunal can decide:
- whether a person meets the requirements to receive compulsory treatment
- that a person should be on a community treatment order instead of an inpatient treatment order
- to revoke a community or inpatient treatment order
- the length of the treatment order, and
- whether or not a person meets the requirements for electroconvulsive treatment.
The tribunal cannot generally make treatment decisions, other than for electroconvulsive treatment.
People subject to treatment orders have the right to apply to the tribunal to have their order revoked, to participate in the hearing and to express their view. They can also authorise other people to represent them.
If the person before the tribunal is unhappy with the outcome, they have the right to apply or reapply for revocation, seek a second psychiatric opinion, seek reasons for the decision and apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review.
Mental Health Complaints Commissioner – Part 10
- in writing, or
- verbally, if confirmed in writing.
Other people can make a complaint on a person’s behalf, such as someone asked to make a complaint by them, or someone who can show that they have a genuine interest in the person’s wellbeing.
(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 12 May 2022