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The Mental Health Act 2014 is the law that describes how and when human rights can be restricted for people in a mental health context. It’s most commonly used by:
Compulsory detention & treatment would be illegal without the Mental Health Act. THE MENTAL HEALTH ACT IS DISCRIMINATIONThe Mental Health Act is lawful in Australia, but it breaches our rights under international law, most importantly the right to be treated equally under the law (freedom from discrimination). The Act is discriminatory because people are treated less favourably on the basis of a protected characteristic: mental health challenges and/or psychosocial disability.
We think the Mental Health Act should be repealed. VMIAC does not support the Mental Health Act. One of our most important strategic goals is to eventually abolish this discriminatory legislation. Like any other citizen, we should be able to say yes or no to health treatments, we should never be detained unless we have committed a crime, and restrictive practices should be abolished. SOME COMMON WAYS THE ACT RESTRICTS OUR RIGHTSThe Mental Health Act makes it lawful to restrict many of our rights. Some of the most common restrictions include:
LIMITS, PROTECTIONS & OVERSIGHTThe Mental Health Act contains strict limits to how, when and why our rights can be restricted. These are supposed to make sure that the law is followed, and rights are only restricted in the ways allowed. Sometimes these limits and protections work well, and sometimes they don’t work. Criteria for compulsory treatmentAll four criteria in the Act must be met before we can be detained or treated against our will. These include:
Additional rightsThe Mental Health Act creates some additional rights for patients affected by the Act. These include:
The Mental Health Act creates some extra rights, but these can never replace our fundamental human rights. Sometimes mental health services say that these are our only rights when we are a mental health patient. But this is misleading. We retain all of our fundamental human rights, and the service is only allowed to restrict them in very specific ways. We wouldn’t need these extra rights if our fundamental rights were upheld. Protections for our rightsProtections for consumer rights can be found from the following organisations and statutory bodies:
The Mental Health Act (2014) (the Act) provides for the treatment, care, support and protection of people who have a mental illness; the protection of the rights of people who have a mental illness; and the recognition of the role of families and carers in providing the best possible care and support to people who have a mental illness, in the least restrictive environment. Review of the Mental Health Act (2014) The Mental Health Commission is reviewing the Mental Health Act (2014) and undertook a six-month public consultation to obtain feedback to help inform the Review. The Commission heard from people who:
PLEASE NOTE: The public consultation period closed in early 2022. Submissions are no longer being accepted.The objectives of the Review are to:
The results of the Review will inform the development of a report and recommendations that will be tabled in Parliament. Discussion Paper A discussion paper was prepared as a tool to assist the public in providing feedback; Statutory Review of the Mental Health Act (2014) Discussion Paper. Extracts of the discussion paper are below: As a person with a mental illness in Victoria, you are protected by the same laws that protect everyone else within the Victorian healthcare system. The Health Records Act relates to the privacy and protection of your health information. The Carer’s Recognition Act acknowledges the role that carers play in treatment and recovery. However, there are some situations where mental health treatment becomes compulsory. The Mental Health Act 2014 is the law governing compulsory mental health treatment in Victoria. Mental health professionals have to abide by and be guided by these laws.The Mental Health Act 2014 provides specifically for the mental health assessment, detention and compulsory treatment of people with severe mental illness. It makes sure that compulsory treatment is only used where necessary to prevent serious harm to the person or to others. The Mental Health Act 2014 requires every compulsory patient must be given a written statement of their patient rights as soon as they become a compulsory patient or receive electroconvulsive treatment or neurosurgery for mental illness under the Act. A compulsory patient is a person on an Assessment Order, a Temporary Treatment Orderor Treatment Order.If they need help to exercise those rights, they can ask someone of their choice to help them – for example: a staff member, case manager, nominated person, friend, relative, advocate, lawyer or doctor. A mental health patient statement of rights includes information about your rights to :
Compulsory mental health treatmentIf a doctor diagnoses you with a particular mental illness or if you have a mental illness escalate . and as a result, you might hurt yourself or others, and you refuse treatment, the doctor can force you to be referred for another mental health assessment or for treatment. Medical practitioners in Victoria have the power to force a person to be assessed and treated for a mental illness if they believe it is needed in order to prevent serious deterioration in the person’s mental or physical health, or serious harm to the person or another person. Mental health assessment and treatment ordersMental health assessment and treatment orders are the steps put in place to make sure that compulsory mental health treatment is used only as a last resort. Assessment orders can only be made by a registered doctor or mental health practitioner (for example, a registered nurse, registered occupational therapist, registered psychologist or social worker employed or engaged by a designated mental health service). An assessment order allows a psychiatrist to examine you, even if you do not want to be assessed, to decide if you have a mental illness and need treatment. If a mental health assessment finds that treatment is needed, a treatment order will be required. You must fit all of the following criteria before any treatment order (temporary or longer) can be made:
If all the above reasons apply to you, the psychiatrist will make aTemporary Treatment Order and you must remain a compulsory patient. A Temporary Treatment Order can only last for a maximum of 28 days. A Temporary Treatment Order can authorise compulsory treatment as an inpatient or in the community. Before the 28 days is up, the Mental Health Tribunal will conduct a hearing. If the tribunal is satisfied that the treatment criteria apply, it may make a Treatment Order (Inpatient or Community) to authorise ongoing compulsory mental health treatment. The duration of a Treatment Order is up to six months for an In-patient Treatment Order, up to 12 months for a Community Treatment Order or up to three months if the person is aged under 18. Victoria Legal AidIf you or someone you know needs legal advice,Victoria Legal can provide free legal assistance. If you need a lawyer to represent you in court, you can apply for a grant for free legal assistance from Victoria Legal Aid. If your grant application is not successful, you will probably need to pay a lawyer to represent you. Call 1300 792 387 between 8:15 am to 5:15 pm, Monday to Friday for free advice. The Law Institute of Victoria – Referral ServiceThe Law Institute of Victoria manages a referral service that can connect you with a legal practitioner. With a referral from the Law Institute of Victoria, your introductory meeting (up to 30 minutes) will be free of charge. After that, standard legal fees will apply.Mental health carers and the lawThe Mental Health Act 2014 recognises and supports the important role of carers and other key support people that care for people with mental illness. The Act says that as a carer, you should be informed of events that directly affect you and your care relationship with the patient. Carers are also acknowledged under the Carer’s Recognition Act 2012. The principles of the Act apply to public and publicly-funded healthcare services. If you think your rights as a carer have been breached, you should first discuss your complaint directly with the healthcare professional involved. Read more on the Making a complaint about a mental health service page. Privacy and confidentiality and mental healthThere are laws that protect the privacy and confidentiality of your communication with healthcare professionals, as well as your healthcare records. The Mental Health Act 2014 prevents the disclosure of patient’s health information except in prescribed situations where certain requirements are met. The Health Records Act 2001 regulates the collection and handling of health information and protects the confidentiality of your healthcare information. For example, there are strict guidelines on access to your healthcare information. If you want your carer to be able to access your healthcare records, you need to give your written consent to authorise their access. See also the Mental Health Act 2014 . Where to get help |