Victoria Legal Aid

Role of lawyers in the mental health law jurisdiction

Lawyers have a critical role to play in ensuring the overarching principles and objectives of the Mental Health Act 2014 are put into effect in practice.

Assisting a client who has a hearing before the Mental Health Tribunal requires an understanding of more than just the relevant legal criteria, the principles that apply and the process involved.

Many people's experiences of compulsory treatment are stigmatising and disempowering.

Understanding your client’s situation – their experiences of mental health services and compulsory treatment, what is important to them and what they hope to achieve – and critically evaluating the available evidence, can enable you to advocate most effectively.

It will assist you to advise your client about their rights and options, negotiate with the treating team and others and advocate effectively on their behalf at the tribunal.

Acting on your client’s instructions

Lawyers are obligated to act on their client’s instructions. This means not assuming instructions, not acting in what is perceived to be their best interests and not acting on the instructions of family members or other supporters.

Understanding the issues for clients and services

Lawyers regularly attend inpatient mental health services and appear before the Mental Health Tribunal to advise and represent clients and negotiate on their behalf. Lawyers may also be able to provide legal assistance to people attending community mental health services. They can influence mental health service provision and promote human rights-compliant decisions about treatment consistent with the objectives at section 10External Link and the principles in section 11 of the Act.

In order to do this, lawyers must understand the:

Advocating for a rights-based and recovery-oriented practice

Lawyers should understand and strive to enforce the specific obligations on public mental health services, psychiatrists and others (such as the Mental Health Tribunal) to restrict a person’s rights only as a last resort, and even then, to maximise their participation in decision-making by respecting the person’s wishes, views and preferences.

This is discussed in more detail in The Mental Health Tribunal – its role and powers and Compulsory treatment and assessment orders.

Supporting clients to express their wishes and make decisions

There are various mechanisms under the Act that are designed to allow people to make decisions about their treatment and recovery and to be supported in exercising greater control over the making of those decisions. It is important for the lawyers acting for clients to clearly understand these mechanisms.

By listening to clients and acting on instructions, lawyers are very well placed to support clients to articulate their strengths, wishes, needs, experiences and goals and to ensure their views are taken into account and respected by others.

This can promote individualised treatment and recovery-oriented practice by mental health services. It can also ensure treatment is provided with the least restrictions on the person’s rights to autonomy, dignity, privacy and bodily integrity, and liberty.

Lawyers can put this into practice in their direct advocacy for clients both at the Mental Health Tribunal and in any negotiations with the person’s treating team or with other services.

Lawyers can also consider referring clients on compulsory orders to the Independent Mental Health Advocacy service (IMHA)External Link for assistance to help them to have as much say as possible about their assessment, treatment and recovery. Another service available to consumers is the Victorian Mental Illness Awareness CouncilExternal Link .

Encouraging the use of tools for supported decision-making

Lawyers can also encourage support and empower clients to take advantage of other tools and mechanisms under the Act to maximise the person’s control over and participation in decisions about treatment.

Tools to promote supported decision-making in practice include:

  • making an advance statement
  • appointing a nominated person
  • seeking a second psychiatric opinion, including one from an independent psychiatrist if a person chooses.

These tools must then be genuinely considered and respected by decision-makers, including the treating team and the Mental Health Tribunal, particularly if a person is later made subject to compulsory treatment.

For more information, see Advance statements, nominated persons, second opinions.

See the Department of HealthExternal Link website for more information on Advance statementsExternal Link and Nominated personsExternal Link .

More information

Read more about:

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

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 23 March 2022

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