Human Rights & the Mental Health Act 2014 (VIC)

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:

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

THE MENTAL HEALTH ACT IS DISCRIMINATION

The 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.

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 RIGHTS

The Mental Health Act makes it lawful to restrict many of our rights. Some of the most common restrictions include:

• Detention in hospital
• Compulsory treatment, including both medication and electroconvulsive therapy (ECT)
• Seclusion (solitary confinement)
• Physical restraint (being held down by staff)
• Mechanical restraint (being tied down with straps)

LIMITS, PROTECTIONS & OVERSIGHT

The 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 treatment 

All four criteria in the Act must be met before we can be detained or treated against our will. These include:

• Have, or appear to have, a mental illness
• Requires immediate treatment in order to prevent harm to self or others
• Immediate treatment is available
• There is no less restrictive treatment available

Additional rights

The Mental Health Act creates some additional rights for patients affected by the Act. These include:

• The right to communicate
• The right to be given a statement of your rights, and have this explained
• The right to make an advance statement
• The right to have a nominated person
• The right to seek a second opinion
• The right to appeal your treatment order
• The right to appear before the Mental Health Tribunal
• The right to make a complaint

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 rights

Protections for consumer rights can be found from the following organisations and statutory bodies:

• Independent Mental Health Advocacy 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. https://www.imha.vic.gov.au/
• The Mental Health Complaints Commissioner is an independent, 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/
• The Office of the Chief Psychiatrist, Dr Neil Coventry provides clinical leadership and advice to mental health service providers, promotes continuous improvement in the quality and safety of mental health services and promotes the rights of people receiving these services. The Chief Psychiatrist supports continuous improvement in mental health services and promotes the rights of people receiving these services. https://www2.health.vic.gov.au/about/key-staff/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 key advocacy issue for OPA since 1988. The work of the Community Visitors Program is critical to OPA’s mental health advocacy. 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/
• 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/