Human Rights and The Mental Health and Wellbeing Act 2022 (Victoria)

The Mental Health and Wellbeing Act 2022 commenced on 1 September 2023 to replace the previous Mental Health Act 2014. The Mental Health and Wellbeing Act 2022 is the new law that governs how people who experience mental health challenges or distress are supposed to be treated. It is used mostly by:

• Mental health inpatient units. 
• Clinical services in the community (i.e., CATT teams, outpatient clinics). 
• Police and emergency services.

Why is there a new Act?

Improving the 2014 Act was one of the recommendations in the final report (published March 2021) by the Royal Commission into Victoria’s mental health system. The 2022 Act was drafted by the Victorian Department of Health. You can read available information about the process of developing and drafting the 2022 Act here.

The Mental Health and Wellbeing Act 2022: the good and the bad 

VMIAC is working hard to drive and support efforts to improve Victoria’s mental health system – including better human rights protections. VMIAC believe seclusion and restraint should be eliminated, and consumers should be the final decision makers on their mental health and wellbeing care. Everyone should be able to say yes or no to health treatments.

For people in contact with mental health systems, there are some improvements to the new Mental Health and Wellbeing Act 2022 and some bad things about it so we will list some of them here.

Some improvements include:

• People receiving compulsory treatment in Victoria will automatically be connected to Independent Mental Health Advocacy (IMHA) services to assist them during assessment, treatment, and recovery. 
• A person’s Advanced Statement of Preferences can include more information about their chosen treatment and/or support, (e.g. community-led supports as opposed to health-led).  
• Witnessing requirements for an Advanced Statement of Preferences and for recognising nominated support persons have been relaxed to include any person over 18. This is a change from the 2014 Act, that required ‘authorised’ witnesses, (e.g. registered medical practitioner, a mental health practitioner). 
• It is a requirement for providers to consider a person’s Advanced Statement of Preferences and follow this statement wherever possible. Under the new Act when providers do not follow this statement, they must document why.

The 2022 Act also includes some new oversight and protections compared to the 2014 Act.

• The Act established the Mental Health and Wellbeing Commission; regional mental health and wellbeing boards; Regional and State-wide multiagency panels; and the Chief Officer for Mental Health and Wellbeing to oversee and govern mental health services. (It must be noted that the important thing here is not only that oversight agencies exist but also how much power or ‘teeth’ these agencies have to respond to take action on complaints and consumer needs). 
• The Act says providers must communicate treatment, care, and support options clearly to people and their nominated support person – including providing accessible and translated information when required. 
• Section 74 of the Act requests consumers are provided with written reasons if suggestions from a second psychiatric opinion are not followed. 
• The Act requires a statement of rights be given to anyone admitted to a designated bed-based mental health service, including voluntary consumers. 
• The Act lists IMHA, and any mental health advocates, as people/organisations that inpatients cannot be restricted from communicating with. 
• The Act states that services must notify IMHA if a direction is made to restrict an inpatient’s right to communicate (Section 55). The other that require IMHA to be notified are unchanged from the 2014 Act and are outlined on IMHA’s website here. 

One step forward one step back: your rights under the Act. 

Despite the improvements identified above, more needs to be done to protect human rights and reduce risks that people will be harmed by the mental health system. These are important things for mental health consumers or potential consumers to know. For example, under the Mental Health and Wellbeing Act 2022:

• Compulsory detention, treatment, and restraint ‘when required’ are still allowed. 
• Decisions about the use of restraint can be decided by an authorised psychiatrist, or if they are not available, a registered medical practitioner or a nurse in charge. These decisions can be made even if it is against the person’s Advanced Statement of Preferences, and/or against advice or wishes of the person, their nominated support person, or the independent advocate.  
• In some cases, such as a mental health emergency, police and public safety officers are also able to use restraint. Public safety officers have the same powers as Police Officers, however training of these officers on mental health remains poor. 
• Psychiatrists and health practitioners can ignore a person’s advanced statement of preferences. While they need to provide a written reason why, there are no structures in place to appeal these decisions or assess how frequently a psychiatrist may do this. 
• We believe the protection of human rights under the Act will vary depending on where you live. For example, rural and regional health hubs may have fewer treatment options available when compared to metro areas. This means people who live in and/or access mental health care in rural and regional areas may be less likely to have their advanced statement of preferences followed. 
• Support and advocacy are not automatically provided to people who seek help voluntarily under the new Act, despite voluntary admission to mental health services being higher than compulsory admission. 
• The Act promotes voluntary treatment in preference to compulsory treatment. However, compulsory treatment is still legal – though the maximum duration for community treatment orders has been reduced to 6 months (Section 193). 

Protections for our rights 

If it doesn’t’ feel right, there’s a strong chance it isn’t. Your human rights when you seek mental health support is important. Information, advice, and support around protections for people experiencing mental health challenges can be accessed through the VMIAC advocacy line on (03) 9380 3900. 

The following organisations and statutory bodies also promote a range of supports. Before you call it might be helpful to consider and write down (or have someone help you write down) what you are worried about or need help with and have it ready for your conversation: 

• Independent Mental Health Advocacy is a non-legal mental health advocacy provider provides support for people who are receiving compulsory mental health treatment to make decisions and have as much say as possible about their assessment, treatment, and recovery. While those in compulsory treatment are automatically connected to IMHA, they are still available to those who have voluntarily admitted themselves for treatment for advice. https://www.imha.vic.gov.au/ 
• Victorian Legal Aid have lawyers who regularly visit the mental health inpatient units of hospitals in Melbourne, Bendigo, Dandenong, and Geelong to help with mental health legal problems. https://www.legalaid.vic.gov.au/ 
• Mental Health Legal Centre provides free, professional, and confidential legal services to people in Victoria with lived experiences of mental illness or involvement with the mental health system and adjacent systems, such as homelessness. https://www.mhlc.org.au  
• Victorian Aboriginal Legal Service provides referrals, advice/information, duty work or case work assistance to Aboriginal and Torres Strait Islander peoples in the State of Victoria. Their solicitors specialise Criminal Law, Family Law and Civil Law. https://www.vals.org.au 
• The Mental Health Complaints Commissioner is a specialist body established under the Mental Health Act 2014 (the Act) to safeguard rights, resolve complaints about Victorian public mental health services and recommend improvements. https://www.mhcc.vic.gov.au/ 
• Office of the Chief Psychiatrist (OCP): The role of the OCP is to provide clinical leadership and advice to mental health service providers, promote improvement in the quality and safety of mental health services and the rights of people receiving them. https://health.vic.gov.au/chief-psychiatrist 
• The Office of the Public Advocate is empowered by law to promote and safeguard the rights and interests of people with disability. Mental health has been a focus of OPA since 1988. OPA community visitors visit all mental health facilities that provide 24-hour nursing care including acute, secure units and community care units. https://www.publicadvocate.vic.gov.au/