Mental Health and Wellbeing Act 2022 Handbook

The Royal Commission into Victoria’s Mental Health System recommended the Victorian Government replace the Mental Health Act 2014 with a new Mental Health and Wellbeing Act (recommendation 42).

The Royal Commission recommended the new Act:

• promote good mental health and wellbeing
• reset the legislative foundations underpinning the mental health and wellbeing system, and
• support the delivery of services that are responsive to the needs and preferences of Victorians.

The new Mental Health and Wellbeing Act 2022 (the Act) commenced on 1 September 2023.

The Act lays the foundations for the new mental health and wellbeing system envisioned by the Royal Commission.

The objectives of the Act reflect the Royal Commission’s aspirational vision for the new mental health and wellbeing system. They are framed broadly to support the pursuit of the highest attainable standard of mental health and wellbeing for all Victorians.

The Act also includes rights-based mental health and wellbeing principles to guide the provision of mental health and wellbeing services.

The Mental Health and Wellbeing Act 2022 builds on the Mental Health Act 2014.

Foundations for a new system

The new Act resets the legislative foundations of Victoria’s mental health and wellbeing system.

It establishes key entities in the new system architecture and includes broader regulation to support a safer, more inclusive system.

The definition of Mental Health and Wellbeing Service Provider includes a wider range of service providers.

Aboriginal Social and Emotional Wellbeing

The Act includes a Statement of Recognition of Aboriginal people and acknowledgement of the Treaty process. The Statement enshrines commitments to Aboriginal self-determination in Victorian Government health statutes for the first time.

A key objective of the Act is the provision of culturally safe and responsive services to Aboriginal and Torres Strait Islander people to support and strengthen connection to culture, family, community and Country.

The cultural safety principle requires mental health and wellbeing service providers to provide culturally safe and responsive mental health and wellbeing treatment and care to Aboriginal and Torres Strait Islander peoples that is appropriate to, and consistent with, their cultural and spiritual beliefs and practices.

The information sharing principles set expectations that the health and personal information of Aboriginal and Torres Strait Islander peoples is to be treated in a way that is culturally safe, promotes self-determination and acknowledges connections to family, kin and community.

Rights-based objectives and principles

New objectives aim to achieve the highest attainable standard of mental health and wellbeing for Victorians.

New rights-based mental health principles prioritise the values, preferences and views of consumers, families, carers and supporters.

Principles support the Royal Commission into Victoria’s Mental Health System ambition of reducing the use of compulsory treatment and restrictive interventions.

The Act sets a higher standard of accountability to embed the principles into daily practice.

For the first time, mental health legislation includes a diversity of care principle, a least restrictive care principle and a principle to support the health, wellbeing and autonomy of children and young people.

Mental health and wellbeing providers must give proper consideration to the principles when making decisions and must make all reasonable efforts to comply with the principles when exercising a function under the Act.

Complaints can be made to the new Mental Health and Wellbeing Commission if a service provider fails to comply with these obligations.

Mental health and wellbeing service providers must report on how they respond to the mental health principles in annual reports.

Lived experience

The new Act puts people with lived and living experience of mental illness and psychological distress, and their families, carers and supporters at the centre of the mental health and wellbeing system.

It does this through the inclusion of new rights-based objectives and principles and designated lived experience roles at the highest levels of new and existing governance and oversight entities. This includes designated lived experience Commissioner roles within the new Mental Health and Wellbeing Commission and lived experience representation on Regional Mental Health and Wellbeing Boards, Youth Mental Health and Wellbeing Victoria, Forensicare and the Victorian Collaborative Centre for Mental Health and Wellbeing.

The lived experience principle recognises the importance and value of the contribution of people with lived experience as leaders and partners in the mental health and wellbeing system.

Supporting individuals

New measures promote supported decision making and the agency and autonomy of people living with mental illness.

This includes the provision of appropriate supports to help people understand information, communicate and make decisions. All reasonable efforts must be made to provide supports any time the Act requires communication with a consumer or their family members, carers and supporters.

Advance statements of preference (formerly advance statement) may now include a broader range of preferences relating to treatment, care and support needs. Designated mental health services are now obliged to make all reasonable efforts to give effect to a patient’s advance statement of preferences and/or to support a nominated support person.

Written reasons must now be provided whenever a treatment preference outlined in an advance statement of preference is overridden.

The Act clarifies the role of the nominated support person (formerly nominated person) to focus on advocating for the views and preferences of the patient and supporting them to communicate and make their own decisions.

Provisions related to second psychiatric opinions are comparable to those of the Mental Health Act 2014, except for a new requirement that a patient is automatically provided with written reasons when recommendations of a second psychiatric opinion are not adopted.

The Act establishes a new opt out model of non-legal mental health advocacy. Service providers must assist mental health advocates in undertaking their role.

Treatment and care

Compulsory assessment criteria and compulsory treatment criteria are unchanged from the Mental Health Act 2014.

Provisions for the making, variation and revocation and operation of assessment orders, court assessment orders, temporary treatment orders and treatment orders are comparable to those of the Mental Health Act 2014, however, new decision making principles for treatment and interventions must be given proper consideration in the application for and making of these orders.

The maximum duration of a community treatment orders has been reduced from 12 months to 6 months.

The Act introduces regulation of chemical restraint as a type of restrictive intervention. Chemical restraint is defined as the giving of a drug to a person for the primary purpose of controlling the person’s behaviour by restricting their freedom of movement but does not include the giving of a drug to a person for the purpose of treatment or medical treatment.

Provisions related to treatment, medical treatment,, electroconvulsive treatment (ECT) and neurosurgery are comparable to those of the Mental Health Act 2014.

Provisions related to the presumption of capacity and informed consent are comparable to those of the Mental Health Act 2014.

New roles and entities

The Act establishes new roles and entities including:

• The Mental Health and Wellbeing Commission, an independent statutory authority with a key role in system-wide oversight of quality and safety and complaints handling
• Youth Mental Health and Wellbeing to provide system leadership and strategic advice, giving agency to the voices of young people with lived experience in response to a crisis in youth mental health
• The Chief Officer for Mental Health and Wellbeing (reporting to the Secretary of the Department of Health with role and functions similar to the Secretary)
• Regional Mental Health and Wellbeing Boards to provide advice to the Minister on the commissioning of mental health and wellbeing services in their regions
• State-wide and Regional Multiagency Panels to bring together service providers and support collaboration and accountability for those requiring ongoing intensive, treatment care and support from multiple services
• A Mental Health Workforce Safety and Wellbeing Committee to provide advice to the department on the prevention of risks to health, safety and wellbeing of the workforce and approaches to monitoring and responding to these risks.

Mental Health and Wellbeing Commission

The Act establishes Victoria's new Mental Health and Wellbeing Commission.

The independent statutory authority commences on 1 September 2023. It will play a key role in system-wide oversight of quality and safety and monitor the achievement of the Royal Commission’s goals.

The Commission has designated roles for Commissioners with lived or living experience of mental illness or psychological distress and with experience as a family member, carer or supporter.

The new Commission will incorporate the existing complaints function of the Mental Health Complaints Commissioner and have a suite of broader powers, including an ‘own motion’ investigation power.

Changes under the new Act:

• allow complaints from families, carers and supporters in relation to their experiences in these roles
• align processes and powers with those available to the Health Complaints Commissioners under the Health Complaints Act 2016
• allow for complaints about a failure to comply with obligations in relation to principles.

Youth Mental Health and Wellbeing Victoria

Youth Mental Health and Wellbeing Victoria (YMHWV) is established as a new entity to:

• provide system leadership and strategic advice, giving agency to the voices of young people with lived experience in response to a crisis in youth mental health; and
• enable a flexible model of delivery and oversight for integrated mental health and wellbeing services for young people by declared operators in specific areas.

Chief Psychiatrist

The role, functions and powers of the Chief Psychiatrist are comparable to that under the Mental Health Act 2014 however:

• the Chief Psychiatrist's jurisdiction is defined to include designated mental health services; mental health and wellbeing service providers that provide mental health and wellbeing services in custodial settings; and any other prescribed entity or class of entity
• the new Act no longer provides for separate clinical practice audits by the Chief Psychiatrist. Instead, the clinical review power will have broader application, covering what would have been subject of a clinical practice audit under the Mental Health Act 2014.
• a new role to oversight the use of chemical restraint.

Provisions related to the appointment of Authorised Psychiatrists and delegation of Authorised Psychiatrist powers are comparable to those of the Mental Health Act 2014.

Mental Health Tribunal

The Act continues the functions of the Mental Health Tribunal which include:

• determining whether the criteria for compulsory mental health treatment as set out in the Act apply and making orders if the criteria are met
• hearing applications for revocation of orders
• hearing and determining applications for certain mental health treatments, including ECT and neurosurgery.

The provisions regarding the Mental Health Tribunal are comparable to those of the Mental Health Act 2014 with minor changes to allow for single member divisions for unopposed adjournment hearings and leave to withdraw proceedings applications.

Information sharing

New principles clarify the purpose and expectations in relation to information sharing.

New provisions in relation to information sharing:

• reflect the new service system by allowing information sharing with specified emergency service providers in an emergency
• specify who can access information from the current electronic health information system and the scope of such access
• enable a consumer to contribute a statement on their health information where a request to correct information has been made under the Freedom of Information Act 1982 or the relevant Health Privacy Principle and the provider has refused to make the correction
• oblige mental health and wellbeing service providers to share information with family, carers or supporters at defined points of care (such as admission or discharge) when a consumer has consented to this disclosure.

Under the new Act information must not be disclosed if there is a risk that a person may be subject to family violence or other serious harm. In other respects, provisions regarding the collection, use and disclosure of information are comparable to those of the Mental Health Act 2014.

Health-led response to mental health crises

New provisions introduced to establish the foundations of a health led response to mental health crises, include:

• new principles that specify powers must be led or informed by health professionals and used in the least restrictive way possible so far as is reasonably practicable in the circumstances
• updated language to reflect a health centred approach to mental health emergency crisis reponses
• a capacity to increase the role of health professionals in responding to mental health crises in the community

Read more in Comparison of key provisions in Mental Health and Wellbeing Act 2022 and the Mental Health Act 2014.

The objectives of the Mental Health and Wellbeing Act 2022 (the Act) provide important context on the main purpose of the Act. The objectives are high level, system wide aspirations.

The Health Secretary and the Chief Officer for Mental Health and Wellbeing are required to promote the objectives of the Act and the Mental Health and Wellbeing Commission must report in its annual report on actions taken to promote the objectives of the Act.

Mental health and wellbeing service providers will support the objectives by complying with the provisions of the Act and in making all reasonable efforts to comply with the mental health and wellbeing principles.

Objectives of the Act

In pursuit of the highest attainable standard of mental health and wellbeing for the people of Victoria, the objectives of the Act are:

1. to promote conditions in which people can
   1. experience good mental health and wellbeing; and
   2. recover from mental illness or psychological distress
2. to reduce inequities in access to, and the delivery of, mental health and wellbeing services
3. to provide for comprehensive, compassionate, safe and high-quality mental health and wellbeing services that promote the health and wellbeing of people living with mental illness or psychological distress and that
   1. are accessible; and
   2. respond in a timely way to the people's needs and recognise that these needs may vary over time; and
   3. are consistent with a person's treatment, care, support and recovery preferences wherever possible; and
   4. are available early in life, early in onset and early in episode
   5. recognise and respond to the diverse backgrounds and needs of the people who use them
   6. provide culturally safe and responsive services to Aboriginal and Torres Strait Islander peoples in order to support and strengthen connection to culture, family, community and Country; and
   7. connect and coordinate with other support services to respond to the broad range of circumstances that influence mental health and wellbeing including alcohol and other drug support services and treatment; and
   8. include a broad range of treatment options with the aim of providing access to the same treatment and support irrespective of whether a person is receiving voluntary or compulsory treatment; and
   9. include a broad and accessible range of voluntary treatment and support options—
      1. to enable a reduction in the use of compulsory assessment and treatment; and
      2. to enable a reduction in the use of seclusion and restraint with the aim of eliminating its use within 10 years
4. to promote continuous improvement in the quality and safety of mental health and wellbeing services including by ensuring that the experiences of people living with mental illness or psychological distress, and the people receiving treatment, their carers, families and supporters, are at the centre of changes in practices and service delivery and the design and evaluation of systems
5. to protect and promote the human rights and dignity of people living with mental illness by providing them with assessment and treatment in the least restrictive way possible in the circumstances
6. to recognise and respect the right of people with mental illness or psychological distress to speak and be heard in their own voices, from their own experiences and from within their own communities and cultures
7. to recognize, promote and actively support the role of families, carers and supporters in the care, support and recovery of people living with mental illness or psychological distress
8. to promote and support the health and wellbeing of families, carers and supporters of people living with mental illness or psychological distress
9. to recognise and value the critical role of the clinical and non-clinical mental health and wellbeing workforce and to support and promote the health and wellbeing of members of that workforce
10. to promote the mental health and wellbeing principles.

Mental health and wellbeing principles

The Mental Health and Wellbeing Act 2022 (the Act) has a set of core mental health and wellbeing principles summarised here and set out in full below. These include:

• The rights, dignity and autonomy of people living with mental illness or psychological distress are to be promoted and protected
• People living with mental illness or psychological distress are to be provided with access to a diverse mix of care and support services
• Mental health and wellbeing services are provided with the least possible restriction of a person’s rights, dignity and autonomy with the aim of promoting their recovery and full participation in community life
• People receiving mental health and wellbeing services (including those receiving compulsory treatment) are supported to make and participate in decisions about their assessment, treatment and recovery, with the views and preference of the person receiving mental health and wellbeing services to be given priority
• Families, carers and supporters (including children) of people receiving mental health and wellbeing services are to be supported in their role in decisions about the person’s assessment, treatment and recovery
• The lived experience of a person with mental illness or psychological distress and their carers, families and supporters are to be recognised and valued
• The medical and other health needs of people living with mental illness or psychological distress are to be identified and responded to
• People receiving mental health and wellbeing services have the right to take reasonable risks in order to achieve personal growth, self-esteem and overall quality of life
• The health, wellbeing and autonomy of children and young people receiving mental health and wellbeing services are to be promoted and supported
• The diverse needs and experiences of people receiving mental health and wellbeing services are to be actively considered, with services provided in a manner that is safe, sensitive and responsive
• The specific safety needs or concerns that a person may have based on their gender are to be considered and services provided in a manner that is safe and responsive to these needs and concerns
• Mental health and wellbeing services are to be culturally safe and responsive to people of all racial, ethnic, faith based and cultural backgrounds – this includes provision of culturally safe and responsive mental health and wellbeing treatment and care to Aboriginal and Torres Strait Islander peoples that is appropriate to, and consistent with, their cultural and spiritual beliefs and practices
• The needs, wellbeing and safety of children, young people and other dependents of people receiving mental health and wellbeing services are to be protected

Application of the mental health and wellbeing principles

Mental health and wellbeing service providers are required to make all reasonable efforts to comply with the mental health and wellbeing principles and to give proper consideration to those principles when making a decision under the Act.

Mental health and wellbeing service providers that are required under Victorian law to produce an annual report must include in that annual report information about action taken to give effect to one or more of mental health and wellbeing principles.

The Mental Health and Wellbeing Commission can receive and deal with complaints about a mental health and wellbeing service provider’s failure to make all reasonable efforts to comply with the mental health and wellbeing principles.

Guidance on applying the mental health and wellbeing principles

The Mental Health and Wellbeing Commission may issue guidance material about how the mental health and wellbeing principles should be applied in relation to particular actions and decisions made under the Act

Other principles in the Act

The Act also contains specific:

• Decision-making principles for treatment and interventions which must be given proper consideration by those making decisions in relation to a patient’s assessment or treatment or the use of restrictive intervention.
• Information sharing principles to which people, providers or other organisations must give proper consideration when making a decision to disclose, use or collect health or personal information.

Mental Health and Wellbeing Principles

The following are the 13 mental health and wellbeing principles in full

Dignity and autonomy principle

The rights, dignity and autonomy of a person living with mental illness or psychological distress are to be promoted and protected and the person is to be supported to exercise those rights.

Diversity of care principle

A person living with mental illness or psychological distress is to be provided with access to a diverse mix of care and support services. This is to be determined, as much as possible, by the needs and preferences of the person living with mental illness or psychological distress including their accessibility requirements, relationships, living situation, any experience of trauma, level of education, financial circumstances and employment status.

Least restrictive principle

Mental health and wellbeing services are to be provided to a person living with mental illness or psychological distress with the least possible restriction of their rights, dignity and autonomy with the aim of promoting their recovery and full participation in community life. The views and preferences of the person should be key determinants of the nature of this recovery and participation.

Supported decision making principle

Supported decision-making practices are to be promoted. Persons receiving mental health and wellbeing services are to be supported to make decisions and to be involved in decisions about their assessment, treatment and recovery including when they are receiving compulsory treatment. The views and preferences of the person receiving mental health and wellbeing services are to be given priority.

Family and carers principle

Families, carers and supporters (including children) of a person receiving mental health and wellbeing services are to be supported in their role in decisions about the person's assessment, treatment and recovery.

Lived experience principle

The lived experience of a person with mental illness or psychological distress and their carers, families and supporters is to be recognised and valued as experience that makes them valuable leaders and active partners in the mental health and wellbeing service system.

Health needs principle

The medical and other health needs of people living with mental illness or psychological distress are to be identified and responded to, including any medical or health needs that are related to the use of alcohol or other drugs. In doing so, the ways in which a person's physical and mental health needs may intersect should be considered.

Dignity of risk principle

A person receiving mental health and wellbeing services has the right to take reasonable risks in order to achieve personal growth, self-esteem and overall quality of life. Respecting this right in providing mental health and wellbeing services involves balancing the duty of care owed to all people experiencing mental illness or psychological distress with actions to afford each person the dignity of risk.

Wellbeing of young people principle

The health, wellbeing and autonomy of children and young people receiving mental health and wellbeing services are to be promoted and supported, including by providing treatment and support in age and developmentally appropriate settings and ways. It is recognised that their lived experience makes them valuable leaders and active partners in the mental health and wellbeing service system.

Diversity principle

1. The diverse needs and experiences of a person receiving mental health and wellbeing services are to be actively considered noting that such diversity may be due to a variety of attributes including any of the following:
   • gender identity
   • sexual orientation
   • sex
   • ethnicity
   • language
   • race
   • religion, faith or spirituality
   • class
   • socioeconomic status
   • age
   • disability
   • neurodiversity
   • culture
   • residency status
   • geographic disadvantage.
2. Mental health and wellbeing services are to be provided in a manner that:
   • is safe, sensitive and responsive to the diverse abilities, needs and experiences of the person including any experience of trauma; and
   • considers how those needs and experiences intersect with each other and with the person's mental health.

Gender safety principle

People receiving mental health and wellbeing services may have specific safety needs or concerns based on their gender. Consideration is therefore to be given to these needs and concerns and access is to be provided to services that:

• are safe; and
• are responsive to any current experience of family violence and trauma or any history of family violence and trauma; and
• recognise and respond to the ways gender dynamics may affect service delivery, treatment and recovery; and
• recognise and respond to the ways in which gender intersects with other types of discrimination and disadvantage.

Cultural safety principle

• Mental health and wellbeing services are to be culturally safe and responsive to people of all racial, ethnic, faith-based and cultural backgrounds.
• Treatment and care is to be appropriate for, and consistent with, the cultural and spiritual beliefs and practices of a person living with mental illness or psychological distress. Regard is to be given to the views of the person's family and, to the extent that it is practicable and appropriate to do so, the views of significant members of the person's community. Regard is to be given to Aboriginal and Torres Strait Islander people's unique culture and identity, including connections to family and kinship, community, Country and waters.
• Treatment and care for Aboriginal and Torres Strait Islander peoples is, to the extent that it is practicable and appropriate to do so, to be decided and given having regard to the views of elders, traditional healers and Aboriginal and Torres Strait Islander mental health workers.

Wellbeing of dependents principle

The needs, wellbeing and safety of children, young people and other dependents of people receiving mental health and wellbeing services are to be protected.

Existing orders and procedures under the Mental Health Act 2014 transition to corresponding provisions in the Mental Health and Wellbeing Act 2022 (the Act).

Transition – advance statements and nominated persons

An advance statement, made under the Mental Health Act 2014, that was in effect as the new Act commenced on 1 September 2023 will be taken to be an advance statement of preferences under the Act.

A person who is a nominated person under the Mental Health Act 2014 as the new Act commenced on 1 September 2023 will be a nominated support person under the Act.

Transition – right to communicate

A direction restricting an inpatient’s right to communicate that was in effect as the new Act commenced on 1 September 2023 will be taken to be a direction under the Act.

Transition – second psychiatric opinions

If before 1 September 2023, a second psychiatric opinion report recommends changes to an eligible patient's current treatment, that report will be taken to be a second psychiatric report prepared under the Act.

If a second psychiatric opinion was sought but not yet given under the Mental Health Act 2014, the Act will apply to the giving of the second psychiatric opinion and the preparation of a second psychiatric opinion report from 1 September 2023.

Transition – electroconvulsive treatment and neurosurgery for mental illness

A course of ECT authorised before 1 September 2023 continues to apply as though the authorisation was made under the Act.

Approval for the performance of neurosurgery granted by the Mental Health Tribunal before 1 September 2023 will be taken to be approval granted under the Act.

Transition –seclusion and bodily restraint

Seclusion or bodily restraint authorised prior to 1 September 2023 will be taken to be seclusion or bodily restraint authorised under the Act.

Transition – assessment orders, temporary treatment orders and treatment orders

An Assessment Order made under the Mental Health Act 2014 that was in force as the new Act commenced on 1 September 2023 continues in force as if it were an Assessment Order made under the Act.

A variation to a Court Assessment Order made by an authorised psychiatrist under the Mental Health Act 2014 changing the order from an Inpatient Court Assessment Order to a Community Court Assessment Order (or vice-versa) that was in force as the Act commenced on 1 September 2023 is taken to be a change of assessment in accordance with the Act.

A Treatment Order or Temporary Treatment Order made under the Mental Health Act 2014 will continue to operate as though it were a Treatment Order or Temporary Treatment Order made under the Act, for the period specified in the order.

However, in circumstances where a community treatment order is varied to an inpatient treatment order and the order has a period of longer than 6 months, the Mental Health Tribunal will vary the period as the Tribunal considers appropriate so that it is not more than 6 months.

Transition – leave arrangements

A leave of absence or monitored leave granted under the Mental Health Act 2014 will be taken to be a leave of absence or monitored leave granted under the Act. The leave will be subject to the same dates and conditions that were granted under the Mental Health Act 2014.

Transition – Mental Health Tribunal hearings

Any application to, or matter before, the Mental Health Tribunal before 1 September 2023 will be heard and determined under the Act. This includes matters that have been partially heard or adjourned prior to 1 September 2023.

Appropriate supports

Appropriate supports are measures which can reasonably be provided to a person to assist the person to

• make decisions and participate in decision making; or
• understand information and their rights; or
• communicate their views, preferences, questions, or decisions.

Examples of appropriate supports

• communicating in the person's preferred language including use of interpreters
• communicating in an accessible format, style or mode, including using technology
• communicating in a way that is tailored to the person's needs including literacy, developmental needs or cultural needs
• communicating in an appropriate physical or sensory environment
• allowing and enabling the person's family member, carer, supporter or advocate to be present (including by the use of technology if not in person)
• providing appropriate spaces for communication with family members, carers, supporters or advocates.

Authorised mental health practitioner

An authorised mental health practitioner is

• a person who is employed or engaged by a designated mental health service as a:
  • registered psychologist; or
  • registered nurse; or
  • social worker; or
  • registered occupational therapist.
• a person who has completed the degree of Bachelor of Health Science (Mental Health) at Charles Sturt University and who is employed or engaged by a designated mental health service as a mental health clinician. [Note this class of person is prescribed to be an authorised mental health practitioner in the Mental Health and Wellbeing Regulations 2023. The Act also allows for regulations to be made to include additional classes of person in this definition]

Authorised mental health practitioners have particular roles and powers under the Act. This includes making assessment orders and as part of the response to a person experiencing a mental health crisis in the community.

Authorised mental health practitioners are also included in the definition of authorised person.

Authorised person

An Authorised person is

• a police officer; or
• a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986;
• a protective services officer; or
• a registered medical practitioner employed or engaged by a designated mental health service; or
• an authorised mental health practitioner.

The Act also allows for regulations to be made to include additional classes of person in this definition.

Authorised persons have specific powers when a person is required to be transported under the Act

Authorised psychiatrist

An authorised psychiatrist is a psychiatrist appointed by the governing body of a designated mental health service with particular functions and powers under the Act.

One designated mental health service may appoint multiple authorised psychiatrists.

Authorised psychiatrists can examine a person and extend or revoke assessment orders or make temporary treatment orders. Authorised psychiatrists have powers to make treatment decisions for a person, to consent to the medical treatment of a patient and to authorise the use of restrictive interventions in some circumstances. Other roles include applying to the Mental Health Tribunal for the making of Treatment Orders or authority to perform electroconvulsive treatment.

The Act allows for an authorised psychiatrist to delegate powers or functions to specified classes of people.

References to authorised psychiatrist throughout this handbook include any person to whom the relevant powers or functions have been delegated.

Bodily restraint

Bodily restraint means physical restraint or mechanical restraint, of a person. Bodily restraint is a type of restrictive intervention.

Carer

Carer means a person, including a person under the age of 18 years, who provides care to another person with whom he or she is in a care relationship, but does not include a parent if the person to whom the care is provided is under 16 years of age.

Care relationship

A person is in a care relationship if they provide or receive care because one of the people in the relationship has a disability, is older, has a mental illness or an ongoing medical condition.

A person is not in a care relationship:

• merely because they are the spouse or domestic partner of a person, the parent, child or other relative of a person, or because they live with a person; or
• if they provide the care under a service or employment contract, as part of employment or voluntary work for a community organisation or as part of an education or training requirement.

Chemical restraint

Chemical restraint means the giving of a drug to a person for the primary purpose of controlling the person's behaviour by restricting their freedom of movement but does not include the giving of a drug to a person for the purpose of treatment or medical treatment. Chemical restraint is a type of restrictive intervention.

Clinical mental health service provider

A clinical mental health service provider is

• a designated mental health service; or
• a mental health and wellbeing service provider that provides mental health and wellbeing services in a custodial setting.

The Act also allows for regulations to be made to include additional types of service providers in this definition.

Clinical mental health services fall under the oversight of the Chief Psychiatrist.

Consumer

A consumer is a person who

• is receiving or has received or mental health and wellbeing services from a mental health and wellbeing service provider; or
• was assessed by an authorised psychiatrist and was not provided with treatment; or
• sought or is seeking mental health and wellbeing services from a mental health service provider and was not or is not provided with those services.

Custodial setting

A custodial setting is a place where a person is held

• in a prison within the meaning of the Corrections Act 1986; or
• in a remand centre, youth residential centre or youth justice centre; or
• in a police gaol within the meaning of the Corrections Act 1986.

The Act also allows for regulations to be made to include locations in this definition.

Designated mental health service

A designated mental health service is:

• a public hospital, public health service, denominational hospital, privately operated hospital or a private hospital within the meaning of section 3(1) of the Health Services Act 1998 that has been prescribed in the Mental Health and Wellbeing Regulations 2022, that is –
  • Albury Wodonga Health
  • Alfred Health
  • Austin Health
  • Barwon Health
  • Bendigo Health Care Group
  • Eastern Health
  • Goulburn Valley Health
  • Grampians Health
  • Latrobe Regional Hospital
  • Melbourne Health
  • Mercy Public Hospitals Incorporated
  • Mildura Base Public Hospital
  • Monash Health
  • Northern Health
  • Peninsula Health
  • South West Healthcare
  • St Vincent’s Hospital (Melbourne) Limited
  • The Royal Children’s Hospital
  • Western Health; or
• the Victorian Institute of Forensic Mental Health;
• a service that is temporarily declared to be a designated mental health service under the Act, or
• a declared operator of Youth Mental Health and Wellbeing Victoria (no operators have yet been declared).

Electroconvulsive treatment

Electroconvulsive treatment means the application of electric current to specific areas of a person's head to produce a generalised seizure.

Emergency service provider

Emergency service provider means Ambulance Service – Victoria.

The Act also allows for regulations to be made to include additional providers in this definition.

Family violence

Family violence is behaviour by a person

• towards a family member that:
  • is physically or sexually abusive; or
  • is emotionally or psychologically abusive; or
  • is economically abusive; or
  • is threatening; or
  • is coercive; or
  • in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
• that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to above.

Forensic patient

A forensic patient is a person who is –

• remanded in custody in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (other than under Part 5A of that Act); or
• committed to custody in a designated mental health service by a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (other than under Part 5A of that Act); or
• detained in a designated mental health service under section 30(2) or 30A(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
• deemed to be a forensic patient by section 73E(4) or 73K(8) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
• detained in a designated mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth; or
• an international forensic patient within the meaning of section 73O of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Note: A person does not cease to be a forensic patient if that person—

• is on leave of absence from a designated mental health service; or
• is absent from a designated mental health service without leave.

Guardian

A guardian is a person appointed in a guardianship order as a guardian in relation to one or more specified personal matters in accordance with the Guardianship and Administration Act 2019.

Mechanical restraint

Mechanical restraint means the use of a device to prevent or restrict a person’s movement.

Medical treatment

Medical treatment means any of the following treatments of a person by a health practitioner for the purposes of diagnosing a condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life:

• treatment with physical or surgical therapy
• treatment with prescription pharmaceuticals
• dental treatment
• palliative care
• medical treatment does not include a medical research procedure or treatment for mental illness.

Medical treatment decision maker

A medical treatment decision maker has the same meaning as in the Medical Treatment Planning and Decisions Act 2016.

Note – a medical treatment decision maker cannot make a decision for a patient in relation to treatment for mental illness and cannot make a decision for a person in relation to neurosurgery for mental illness.

Mental health and wellbeing professional

A mental health and wellbeing professional is a person who performs duties in connection with the provision of mental health and wellbeing services and who is a

• registered medical practitioner
• registered psychologist; or
• a registered nurse or enrolled nurse; or
• a registered paramedic; or
• a registered occupational therapist; or
• a social worker of a prescribed class; or
• a counsellor of a prescribed class; or
• a person employed or engaged in a prescribed role that requires the person to have personal experience with mental illness or experience as a carer of a person who is living with mental illness; or
• a psychosocial support worker of a prescribed class; or
• an allied health professional of a prescribed class.

Mental Health and Wellbeing professionals do not have specific roles or powers under the Act. However, the definition of Mental Health and Wellbeing Service provider includes that an entity employs or engages a Mental Health and Wellbeing professional.

Mental health and wellbeing service

A mental health and wellbeing service is

• a service performed for the primary purpose of:
  • improving or supporting a person's mental health and wellbeing; or
  • assessing, or providing treatment, care or support to, a person for mental illness or psychological distress; or
  • providing care or support to a person who is a family member, carer, or supporter, of a person with mental illness or psychological distress;
• but does not include a non-legal mental health advocacy service.

The Act also allows for regulations to be made to include services or classes of service in, or to exclude services or classes of service from, this definition.

The Mental Health and Wellbeing Regulations 2023 state that a mental health and wellbeing service also does not include a mental health and wellbeing advocacy service.

This means, for example, that the individual and systemic advocacy services provided by peak bodies are not mental health and wellbeing services for the purposes of the Act.

Mental health and wellbeing service provider

A mental health and wellbeing service provider is an entity (other than an individual) that

• receives funding from:
  • the State for the primary purpose of providing mental health and wellbeing services; or
  • another entity (other than an individual), being funding that was received by the other entity from the State for the primary purpose of providing mental health and wellbeing services; and is provided to the entity for a purpose that is consistent with the funding arrangement or agreement between the State and the other entity; and
• employs or engages a mental health and wellbeing professional in connection with providing the mental health and wellbeing services.

The Act also allows for regulations to be made to exclude providers or classes of provider from, this definition. The Mental Health and Wellbeing Regulations 2023 exclude a number of entities from this definition, including:

• schools, children’s services, and education and care services, along with the providers of services to children, students or staff of these services.
• the Department of Education
• a court or tribunal, or other entity that exercises a function that is of a judicial or quasi-judicial nature
• a provider of a workplace mental health and wellbeing support service (such as an employee wellbeing support program) to the extent of the provision of that service.

Mental illness

Mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.

A person is not to be considered to have mental illness merely because the person

• expresses or refuses or fails to express a particular political opinion or belief, religious opinion or belief or philosophy
• expresses or refuses or fails to express a particular sexual preference, gender identity or sexual orientation
• engages or refuses or fails to engage in a particular political activity or religious activity
• has engaged in a certain pattern of sexual behaviour
• engages in conduct that is contrary to community standards of acceptable conduct
• engages in illegal conduct or antisocial behaviour
• is intellectually disabled
• uses drugs or alcohol
• has a particular economic or social status or is a member of a particular cultural or racial group
• is or has previously been involved in family conflict
• is experiencing or has experienced psychological distress
• has previously been diagnosed with, or treated for, mental illness.

Although the use of drugs and alcohol is not to be a reason a person is considered to have mental illness, this does not mean the serious temporary or permanent physiological, biochemical or psychological effects of drugs and alcohol use cannot be regarded as an indication that a person has mental illness.

Neurosurgery for mental illness

Neurosurgery for mental illness means

• any surgical technique or procedure by which one or more lesions are created in a person's brain for the purpose of treatment; or
• the use of intracerebral electrodes to create one or more lesions in a person's brain for the purpose of treatment; or
• the use of intracerebral electrodes to stimulate a person’s brain without creating a lesion for the purpose of treatment.

Nurse in charge

Nurse in charge means a registered nurse who is undertaking, whether temporarily or permanently, the role of

• a nurse unit manager or equivalent; or
• an associate nurse unit manager or equivalent

Nurse practitioner

Nurse practitioner means a registered nurse who is endorsed under the Health Practitioner Regulation National Law to practise as a nurse practitioner.

Parent

Parent, in relation to a person under the age of 18 years, includes

• a person who has custody or daily care and control of the person;
• a person who has all of the duties, powers, responsibilities and authority (whether conferred by a court or otherwise) which by law parents have in relation to their children; or
• any other person who has the legal right to make decisions about medical treatment of the person.

Patient

Patient means

• a person who is subject to an assessment order
• a person who is subject to a court assessment order
• a person who is subject to a temporary treatment order
• a person who is subject to a treatment order
• a security patient
• a forensic patient

Physical restraint

Physical restraint means the use by a person of their body to prevent or restrict another person's movement but does not include the giving of physical support or assistance to a person in the least restrictive way that is reasonably necessary to enable the person to be supported or assisted to carry out daily activities; or to redirect the person because they are disoriented.

Psychiatrist

Psychiatrist means a person who is registered under the Health Practitioner Regulation National Law as a medical practitioner in the speciality of psychiatry (other than as a student).

Registered medical practitioner

Registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student).

Registered medical practitioners have particular roles and powers under the Act. This includes making assessment orders. Registered medical practitioners employed or engaged by designated mental health services have additional roles and powers including the authorisation of urgent treatment for a person subject to an assessment order and in the authorisation of the use of restrictive interventions in some circumstances.

Registered nurse

Registered nurse means a person who is registered in Division 1 of the Register of Nurses kept by the Nursing and Midwifery Board of Australia under the Health Practitioner Regulation National Law (other than as a student).

Registered occupational therapist

Registered occupational therapist means a person who is registered under the Health Practitioner Regulation National Law to practise in the occupational therapy profession (other than as a student).

Registered psychologist

Registered psychologist means a person who is registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student).

Relevant child protection order

A relevant child protection order is

• a therapeutic treatment (placement) order within the meaning of the Children, Youth and Families Act 2005; or
• a family reunification order within the meaning of the Children, Youth and Families Act 2005; or
• a care by Secretary order within the meaning of the Children, Youth and Families Act 2005; or
• a long-term care order within the meaning of the Children, Youth and Families Act 2005.

Restrictive intervention

Restrictive intervention means seclusion, bodily restraint or chemical restraint.

Seclusion

Seclusion means the sole confinement of a person to a room or any other enclosed space from which it is not within the control of the person confined to leave. Seclusion is a type of restrictive intervention.

Secure treatment order

A secure treatment order is an order made by the Justice Secretary that enables a person who is subject to the order to be:

• compulsorily taken from a prison or other place of confinement and transported to a designated mental health service; and
• detained and treated in the designated mental health service.

Security patient

A security patient is a person who is not subject to an assessment order, a court assessment order, a temporary treatment order or a treatment order but is:

• detained in a designated mental health service irrespective of whether the person is absent with or without leave from the designated mental health service; and
• is subject to a court secure treatment order (under the Sentencing Act 1991) or a secure treatment order.

Senior available next of kin

The senior available next of kin means:

• In relation to a deceased child
  1. if a parent of the child is available, a parent of the child
  2. if a parent of the child is not available, a brother or sister of the child who has attained the age of 18 years and who is available, or
  3. if no person referred to in (i) or (ii) is available, a person who was the guardian of the child immediately before the death of the child and who is available.
• In relation to any other deceased person -
  1. if the person, immediately before the person's death, had a spouse or domestic partner and that spouse or domestic partner is available, that spouse or domestic partner
  2. if the person, immediately before the person's death, did not have a spouse or domestic partner or the spouse or domestic partner is not available, a son or daughter of the person who has attained the age of 18 years and who is available
  3. if no person referred to in (i) or (ii) is available but a parent of the person is available, that parent, or
  4. if no person referred to in (i), (ii) or (iii) is available, a brother or sister of the person who has attained the age of 18 years and is available.

Treatment

Treatment means treatment for mental illness.

A person receives treatment for mental illness if professional skill is used to remedy or alleviate the person's mental illness; or to alleviate the symptoms and reduce the ill effects of the person's mental illness.

Treatment includes electroconvulsive treatment and neurosurgery.

Detention is not treatment.

This section of the handbook relates to safeguards, protection of rights and complaints processes.

The Act has strengthened safeguards that align with the dignity and autonomy principle.

The Act also allocates specific roles in safeguarding the rights of people receiving mental health and wellbeing services. These include:

• the Mental Health Tribunal
• Community visitors
• the complaints handling and investigation functions of the Mental Health and Wellbeing Commission.

Seeking a second psychiatric opinion

An ‘eligible patient’ can seek a second psychiatric opinion at any time.

An eligible patient is a person who is subject to a Temporary Treatment Order or Treatment Order, a security patient or a forensic patient.

An authorised psychiatrist must ensure reasonable steps are taken to assist an eligible patient who asks for help to obtain a second psychiatric opinion. This may include assistance to decide the most appropriate psychiatrist to provide the second psychiatric opinion. This may be decided by the patient's circumstances in each case including, the purpose for which the opinion is sought, the diagnosis, the urgency of the request and the patient's financial circumstances.

Other people may also seek a second psychiatric opinion for an eligible patient:

• any person if requested to do so by an eligible patient,
• a guardian of the eligible patient
• a parent of an eligible patient under 16 years of age
• the Secretary, DFFH if the eligible patient is on a relevant child protection order

Other consumers who are not ‘eligible patients’ can also seek second opinions, but the requirements and processes described here and set out in Part 2.7 of the Act will not apply to that opinion.

Providers of second psychiatric opinions

A second psychiatric opinion can be sought from any psychiatrist. This may include:

• another psychiatrist at the patient's treating designated mental health service
• a psychiatrist from a different designated mental health service
• a private psychiatrist
• the Second Psychiatric Opinion Service.

Role of the psychiatrist giving a second psychiatric opinion

A psychiatrist giving a second psychiatric opinion under the Act reviews the treatment provided to an eligible patient and may recommend changes.

For patients on Temporary Treatment Orders or Treatment Orders and security patients (eligible patients), the second opinion psychiatrist will also provide an opinion about whether the criteria for the relevant order apply.

A psychiatrist giving a second psychiatric opinion cannot override or change the treatment being provided by the authorised psychiatrist or the person’s treating team.

The psychiatrist giving a second psychiatric opinion may:

• examine the eligible patient
• access any relevant heath information that is held by the designated mental health service treating the eligible patient
• consult the authorised psychiatrist and any other staff of the designated mental health service about the eligible patient's treatment.

In deciding whether to recommend any changes to the patient’s treatment, the second opinion psychiatrist must have regard to the patient's views and preferences about treatment, any reasonably available beneficial alternative treatment and the reasons for these views and preferences including any recovery outcomes the patient would like to achieve.

This includes the views and preferences of the patient set out in their advance statement of preferences if they have one.

To the extent reasonable in the circumstances the psychiatrist must also have regard to:

• the views of the patient’s nominated support person (if any)
• the views of the patient’s guardian (if any)
• the views of a carer if the psychiatrist is satisfied the recommended changes will directly affect the carer and the care relationship
• the views of a parent, if the patient is under 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the patient is under a relevant child protection order

Staff of a designated mental health service must provide a psychiatrist giving a second psychiatric opinion any reasonable assistance that the psychiatrist requires in order to perform or exercise their functions or powers.

For more information on these terms, see Terms and definitions.

Second psychiatric opinion reports

The psychiatrist giving a second psychiatric opinion must prepare a written report and must ensure that reasonable steps are taken to give that report, in a timely manner to:

• the patient
• the person who requested the second psychiatric opinion on behalf of the patient (if relevant)
• the authorised psychiatrist
• the patient’s nominated support person (if applicable)
• the patient’s guardian (if applicable)
• the patient’s carer where the second opinion will directly affect the carer and the care relationship
• the patient’s parent, if the patient is under 16 years
• the Secretary of the Department of Families, Fairness and Housing if the patient is under a relevant child protection order.

Role of the authorised psychiatrist who receives a second psychiatric opinion report

An authorised psychiatrist must consider any second psychiatric opinion report and may make changes to the patient’s treatment based on the recommendations.

If the second psychiatric opinion expresses an opinion that the criteria for the relevant order do not apply to a patient

If a second psychiatric opinion report expresses an opinion that the criteria for the relevant order do not apply to a patient on a Temporary Treatment Order or a Treatment Order or a security patient, the authorised psychiatrist must:

• examine the patient as soon as practicable; and
• determine whether the criteria for the relevant order apply.

If the authorised psychiatrist determines that the criteria for the order do not apply, they must immediately revoke the order.

If the authorised psychiatrist determines the criteria for the order do apply, then they must provide the patient with reasons for that determination as soon as practicable and advise the patient that they have a right to apply to the Mental Health Tribunal for a determination as to whether the criteria do apply or for revocation of the order.

The reasons for the determination must be provided in writing within 10 business days to:

• the patient
• the person who requested the second psychiatric opinion on behalf of the patient (if relevant)
• the patient’s nominated support person (if applicable)
• the patient’s guardian (if applicable)
• the patient’s carer where the second opinion will directly affect the carer and the care relationship
• the patient’s parent, if the patient is under 16 years
• the Secretary of the Department of Families, Fairness and Housing if the patient is under a relevant child protection order.

If the second opinion psychiatrist’s report recommends changes to the eligible patient's treatment

If a second psychiatric opinion report recommends changes to an eligible patient’s current treatment, the authorised psychiatrist must as soon as practicable:

• review the patient’s treatment; and
• decide whether to adopt any of the recommendations.

If the authorised psychiatrist decides not to adopt any of the recommendations or to adopt only some of the recommendations in the report the authorised psychiatrist must

• give their reasons to the eligible patient for adopting none or only some of the recommendations and provide an explanation of the reasons; and
• advise the eligible patient that they have a right to apply to the Chief Psychiatrist for a review of their treatment.

The reasons for the determination must be provided in writing within 10 business days to:

• the patient
• the person who requested the second psychiatric opinion on behalf of the patient (if relevant)
• the patient’s nominated support person (if applicable)
• the patient’s guardian (if applicable)
• the patient’s carer where the decision will directly affect the carer and the care relationship
• the patient’s parent, if the patient is under 16 years
• the Secretary of the Department of Families, Fairness and Housing if the patient is under a relevant child protection order.

An eligible patient (or any of the people listed above who can apply for a second psychiatric opinion) may apply to the Chief Psychiatrist for a review of the patient’s treatment if the authorised psychiatrist does not adopt any or all of the recommendations in a second psychiatric opinion report.

Staff of a designated mental health service must provide an eligible patient with any reasonable assistance in making an application to the Chief Psychiatrist for a review of their treatment.

The Chief Psychiatrist may recommend changes to the treatment and can direct an authorised psychiatrist to make changes to the eligible patient’s treatment.

More information about the process for Chief Psychiatrist review is available from the Office of the Chief Psychiatrist.

The Office of the Public Advocate’s Community Visitors Program provides an important quality and safety oversight function for people receiving residential mental health services at prescribed premises.

Role of community visitors

Community Visitors perform a critical quality and safety role, visiting prescribed premises and protecting the rights of people receiving services there.

Community Visitors inquire about the adequacy of services and facilities provided, and any non-compliance with the Act and its regulations.

Community Visitors inquire into:

• the adequacy of services and facilities provided at prescribed premises, including:
  • the appropriateness and standard of facilities for the accommodation
  • the physical wellbeing and welfare of persons receiving mental health and wellbeing services
  • the adequacy of opportunities and facilities for recreation, occupation, education, training and recovery
• whether the mental health and wellbeing services provided at prescribed premises are provided in accordance with the objectives of the Act and the mental health and wellbeing principles and any contravention of the Act or regulations
• any other matter that a community visitor is satisfied is appropriate, having regard to the objectives of the Act and the mental health and wellbeing principles.

Community Visitors can also assist people receiving mental health and wellbeing services at the premises they visit to:

• resolve issues identified in the course of making an inquiry
• seek support from other relevant bodies or services
• make complaints to the Mental Health and Wellbeing Commission.

Services Community Visitors may visit – prescribed premises

Community Visitors can visit prescribed premises. These are the premises of:

• a designated mental health service
• a mental health and wellbeing service provider in which residential services and 24 hour nursing care is provided for people who have mental illness; or
• Prevention Recovery and Care (PARC) services

Visits by a Community Visitor to prescribed premises may be in person or remote.

Requests to see a Community Visitor

A person receiving mental health and wellbeing services at prescribed premises (or someone on their behalf) may request to be visited by a community visitor.

The person in charge of the prescribed premises must notify the Office of the Public Advocate Advice Service that a visit from a Community Visitor is required within two business days of receiving a request.

Who are Community Visitors

Community Visitors are appointed on the recommendation of the Public Advocate.

They cannot be people who are employed by, or have any direct interest in any contract, with the Department of Health or a mental health and wellbeing service provider that is a prescribed premises.

What can a Community Visitor do?

Community Visitors may visit and inspect a prescribed premises at any time and do not need to give prior notice when they will be visiting.

At the prescribed premises, the Community Visitor may:

• enter and inspect any part of the prescribed premises, except a person’s bedroom unless the person consents
• talk to any person receiving mental health and wellbeing services who wishes, or has asked, to speak with the community visitor
• photograph any object, furnishing or part of a prescribed premises that they consider necessary as part of their role, except a person’s bedroom unless the person consents. Photographs must not identify any person
• inspect any document, other than a clinical record, that is required to be kept under the Act or the Regulations or that relates to a person receiving mental health and wellbeing services at the prescribed premises. This includes incident reports related to any person receiving mental health and wellbeing services at the prescribed premises
• inspect a person’s clinical record, if that person gives consent

Community Visitors must give proper consideration to the mental health and wellbeing principles in performing a function or exercising a power under the Act. They must ensure that decision making processes are transparent, systematic and appropriate and consider ways to promote good mental health and wellbeing.

Staff must provide reasonable assistance

Staff of prescribed premises must give a Community Visitor any reasonable assistance they need to carry out their role.

Community Visitors Code of Practice

The Community Visitors code of practice is made by the Chief Officer for Mental Health and Wellbeing under section 755 of the Mental Health and Wellbeing Act 2022. It is effective from 2 October 2023.

The department plans to further review this code of practice in consultation with stakeholders.

For more information, see the Office of the Public Advocate website.

Anyone can make a complaint about mental health and wellbeing services.

Complaints can be made:

• directly to a mental health and wellbeing service provider. All mental health and wellbeing service providers must have a process for receiving, managing and resolving complaints
• to the Mental Health and Wellbeing Commission (the Commission). The Commission is an independent statutory authority established to oversee the performance, quality and safety of the mental health and wellbeing system and safeguard rights.

Complaints can be made to the Commission in relation to any matter arising from:

• the provision of mental health and wellbeing services by a mental health and wellbeing service provider
• a failure by a mental health and wellbeing service provider to provide services to a consumer
• a failure by a mental health and wellbeing service provider to make all reasonable efforts to comply with the principles of the Act
• the way in which a complaint was handled by a mental health and wellbeing service provider.

Complaints can also be made by a carer, family member or supporter in relation to their experience in that role.

The Commission can assist a person to make a complaint and has powers to support the resolution of complaints and to investigate complaints if appropriate.

For more information, seeMental Health and Wellbeing Commission.

Statements of rights are documents that set out a person’s rights, and the processes that apply, while a person is receiving a mental health and wellbeing service under the Act. Statements of rights are approved by the Chief Officer for Mental Health and Wellbeing.

Contents of statements of rights

A statement of rights provides information relevant to a person’s circumstances, including rights to:

• information, support and help making decisions
• communicate
• feel safe and respected
• make an advance statement of preferences
• choose a nominated support person
• apply to the Mental Health Tribunal for a revocation of a compulsory treatment order
• seek a second psychiatric opinion
• make a complaint to a service provider or the Mental Health and Wellbeing Commission
• be legally represented
• instruct a non-legal mental health advocate to provide support
• seek the assistance of a Community Visitor

Statements of rights also include information about the rights of First Nation people to have their unique culture and identity respected.

Providing a statement of rights

Statements of rights must be provided to:

• people receiving mental health and wellbeing services in a bed-based service at a designated mental health service (including people receiving those services on a voluntary basis)
• patients on assessment orders, court assessment orders, temporary treatment orders, and treatment orders
• security patients on secure treatment orders and court secure treatment orders
• forensic patients
• people consenting to electroconvulsive treatment (ECT) or receiving ECT under an order made by the Mental Health Tribunal
• people consenting to neurosurgery for mental illness
• people subject to intensive monitored supervision orders.

The person responsible for providing a statement of rights to a person must take all reasonable steps to ensure that the person understands the rights set out in the document.

A number of other people must also be given a copy of the statement of rights. This includes a person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the circumstances, event, decision or order in relation to the person under the Act will directly affect the carer and the care relationship
• parent, if the person is under the age of 16
• the Secretary of the Department of Families, Fairness and Housing if that Secretary has parental responsibility for the inpatient under a relevant child protection order

The right to communicate

Inpatients receiving compulsory assessment or treatment have a right to communicate lawfully with any person. This includes for the purpose of seeking legal advice or representation or seeking the assistance of an advocate.

Communication includes making or receiving phone calls, sending or receiving letters; communicating via electronic means; and receiving visitors at reasonable times. Staff of a designated mental health service must ensure reasonable steps are taken to assist an inpatient to communicate.

Restricting the right to communicate

An authorised psychiatrist can make a written direction to restrict an inpatient’s right to communicate if they are satisfied that it is reasonably necessary to protect the health, safety and wellbeing, of the inpatient or of another person.

Any such restriction must be the least restrictive possible in the circumstances to protect the health, safety and wellbeing of the inpatient or of another person.

An authorised psychiatrist cannot restrict an inpatient’s right to communicate with:

• a legal representative
• the Chief Psychiatrist
• the Mental Health and Wellbeing Commission
• the Mental Health Tribunal
• a Community Visitor
• a non-legal mental health advocacy service provider or a mental health advocate
• the Secretary of the Department of Families, Fairness and Housing if that Secretary has parental responsibility for the inpatient under a relevant child protection order

Informing the patient and others of a restriction of the right to communicate

An authorised psychiatrist who makes a direction to restrict a person’s right to communicate must ensure reasonable steps are taken to inform the inpatient of the restriction and the reason for it.

The authorised psychiatrist must also ensure reasonable steps are taken to provide that information to:

• the inpatient’s:
  • nominated support person, if they have one
  • guardian, if they have one
  • carer, if the restriction will directly affect the carer and the care relationship
  • parent, if the inpatient is under the age of 16
  • the Secretary of the Department of Families, Fairness and Housing if that Secretary has parental responsibility for the inpatient under a relevant child protection order
• the non-legal mental health advocacy service provider. The Chief Officer will issue protocols outlining how this requirement is to be met.

For more information on these terms, see Terms and definitions.

Restriction to be regularly reviewed

The authorised psychiatrist must regularly review the decision to restrict an inpatient’s right to communicate and must end the restriction immediately if satisfied that it is no longer necessary.

Role of the Mental Health Tribunal

The functions of the Mental Health Tribunal include hearing and determining applications in relation to:

• Treatment Orders
• revocation of Temporary Treatment Orders or Treatment Orders
• the transfer of a compulsory or security patient to another mental health service
• the orders of security patients, such as for revocation and refusals of a leave of absence
• orders authorising the use of electroconvulsive treatment (ECT) in the treatment of adults who do not have capacity to give informed consent to ECT and any persons under 18 years of age
• neurosurgery for mental illness
• intensive monitored supervision orders.

Hearings at the Tribunal

The Tribunal will hold a hearing in the following circumstances:

• automatically if a person’s temporary treatment order is soon to expire, or a community treatment order has been varied to an inpatient treatment order by an authorised psychiatrist
• on application by the authorised psychiatrist such as for a further treatment order for a person who is already on a treatment order or electroconvulsive treatment (ECT))
• on application by the person involved (or their representative) such as applications for revocation of a treatment order or temporary treatment order

Members of the Mental Health Tribunal

The hearing at the Tribunal will include a legal member, a psychiatrist or registered medical practitioner member and a community member.

If the matter relates to ECT or neurosurgery the hearing must be held with a legal member, a psychiatrist member and a community member.

For more information see the Mental Health Tribunal website.

Supported decision making is about assisting people to make their own decisions, rather than making decisions for them.

Principles promoting supported decision making

Supported decision making principle

Supported decision making practices are to be promoted. Persons receiving mental health and wellbeing services are to be supported to make decisions and to be involved in decisions about their assessment, treatment and recovery including when they are receiving compulsory treatment. The views and preferences of the person receiving mental health and wellbeing services are to be given priority.

Dignity of risk principle

A person receiving mental health and wellbeing services has the right to take reasonable risks in order to achieve personal growth, self-esteem and overall quality of life. Respecting this right in providing mental health and wellbeing services involves balancing the duty of care owed to all people experiencing mental illness or psychological distress with actions to afford each person the dignity of risk.

Provisions in the Act to promote supported decision making

The Act includes requirements to promote and assist communication between practitioners and people with mental illness and their families, carers and supporters. These measures support people receiving mental health and wellbeing services to make decisions about their assessment, treatment and care.

The focus on supported decision making is reflected in provisions relating to capacity and consent to treatment which include a requirement that a person is presumed to have capacity to give consent to treatment.

The Act also includes specific mechanisms related to supported decision making including:

Any person or organisation required by the Act to communicate with a consumer, family member, carer, guardian, nominated support person or a person making a complaint to the Mental Health and Wellbeing Commission must take reasonable steps to explain what they are communicating. They must also answer questions as clearly and completely as possible.

If a person is incapable of understanding information or any oral explanation at the time when it would otherwise be provided, the entity must ensure that reasonable further attempts are made to provide the information or explanation at a time when the person is able to understand the information or explanation.

Appropriate supports

The person or organisation must also take reasonable steps to provide appropriate supports to assist the person being communicated with.

Appropriate supports are defined in the Act to be measures which can reasonably be provided to assist a person to:

• make decisions and participate in decision making
• understand information and their rights
• communicate their views, preferences, questions, or decisions.

Some examples of appropriate supports include:

• using a preferred language, including use of interpreters
• communicating in an accessible format, including, for example, using technology
• tailoring communication to the person's needs, this could include their literacy level, developmental needs or cultural needs
• communicating in an appropriate physical or sensory environment
• allowing and enabling the person's family member, carer, supporter or advocate to be present, including by the use of technology if not in person
• providing space for communication with family members, carers, supporters or advocates.

Reasonable steps must be taken to work out what supports may assist the person. This could involve:

• asking a person what supports may assist them to communicate and participate in decisions
• providing a person with information about the supports available to them, so they can identify what may assist them
• in the case of a patient, having regard to the patient's advance statement of preferences
• in the case of a patient, asking their nominated support person what supports may assist the patient to communicate and participate in decision making.

Informed consent

The informed consent of a person must be sought before they are given any treatment or medical treatment under the Act. This includes giving treatment to a person who is subject to an order authorising compulsory assessment or treatment.

A person gives informed consent if they:

• have capacity to give informed consent
• have been given adequate information to enable them to make an informed decision
• have been given a reasonable opportunity to decide whether or not to consent
• have given consent freely without undue pressure or coercion
• have not withdrawn consent or indicated any intention to withdraw consent.

Note: A person may give informed consent for medical treatment by instructional directive. An instructional directive is an advance care directive made under the Medical Treatment Planning and Decisions Act 2016 and is a legally binding statement in which the person who completes it consents to, or refuses, particular forms of medical treatment or a medical research procedure, or a course of treatment.

Presumption of capacity

A clinician proposing treatment or medical treatment for a person must presume that the person has capacity to give informed consent.

However, informed consent does not need to be sought if the clinician reasonably considers the person does not have capacity at the time the particular decision needs to be made.

Capacity to give informed consent

A person has capacity to give informed consent to a decision if they can:

• understand the information given to them about the decision – a person should be supported to understand the information
• remember the information – a person need only be able to remember information necessary to make the decision, a general recollection is sufficient
• use or weigh the information – a person must be able to assess the information and understand the impact of making, or not making a decision
• communicate their decision – this can be through speech, gesture or any other means.

Deciding if a person has capacity to give informed consent

In deciding whether a person has capacity to give informed consent, the following must be considered:

• capacity to give informed consent is specific to the decision that needs to be made
• a person’s capacity to give informed consent may change over time. Just because a person does not have capacity to give informed consent on one day, it cannot be assumed that they do not have capacity to make a comparable decision on another day
• it should not be assumed that a person lacks capacity to give informed consent based only on their age, appearance, disability, condition or behaviour
• a person doesn’t lack capacity to give informed consent only because the person makes a decision that could be considered unwise
• whether they may be enabled to give informed consent by providing them with the appropriate supports.

An assessment of a person’s capacity should occur at a time and in an environment in which a person’s capacity can be most accurately assessed and the person should be provided with appropriate supports to enable them to give informed consent.

A patient without capacity should be supported to be involved in the decision-making process as far as possible.

Adequate information to give informed consent

The Act describes adequate information to enable a person to make an informed decision as:

• an explanation of the proposed treatment or medical treatment, including the purpose, type, method and likely duration of the treatment or medical treatment
• an explanation of the advantages and disadvantages of the treatment or medical treatment including information about the associated discomfort, risks and common or expected side effects
• an explanation of any beneficial alternative treatments that are reasonably available, including any information about the advantages and disadvantages of these alternatives
• an explanation of the advantages and disadvantages of not undergoing the treatment; and
• answers to any relevant questions they have asked and any other relevant information likely to influence their decision.

Where relevant, the person must also have been given the relevant statement of rights.

Reasonable opportunity to make a decision

The Act describes reasonable opportunity to make an informed decision as:

• a reasonable period of time to consider
• a reasonable opportunity to discuss matters with the relevant health practitioner
• appropriate supports to make the decision
• reasonable opportunity to obtain advice or assistance in making the decision.

Application of the informed consent requirements will vary depending on the nature and effect of the treatment for which informed consent is being sought. For example, the type of information and support that should be provided to a person when seeking informed consent for treatment that involves medication will be different to what is required when seeking informed consent for a talking therapy session.

Given consent freely

Informed consent must be freely given. A person must not feel they have to give informed consent simply because the clinician believes it is necessary for their treatment or in their best interests or to please a family member or carer.

Have not withdrawn consent

A person can withdraw consent at any time. A person can withdraw consent verbally or in writing.

A person can withdraw consent before the treatment starts or during a course of treatment. If the person withdraws consent, the treatment must stop.

A person withdraws consent if they say or indicate by their behaviour that they do not consent to the treatment.

Providing treatment when a patient does not give informed consent

Patient is a term used in the Act to refer to a person who is:

• subject to
  • an assessment order; or
  • a court assessment order; or
  • a temporary treatment order; or
  • a treatment order; or
• is a forensic patient; or
• is a security patient.

The term treatment in the Act means treatment for mental illness. Treatment can be given to a patient without consent in certain circumstances, however, treatment with consent is to be preferred.

Only the patient can give or refuse informed consent for treatment. No other person can give informed consent to treatment. This means that a guardian or Medical Treatment decision maker under the Medical Treatment Planning and Decisions Act 2016 cannot give or refuse informed consent to treatment on behalf of a person who is subject to a compulsory order.

Orders authorising compulsory assessment

A person who is on an assessment order can only be given treatment without consent if a registered medical practitioner employed or engaged by the responsible designated mental health service is satisfied that urgent treatment must be given to the person to prevent serious deterioration in the patient’s mental or physical health or to prevent serious harm to the patient or another person.

Indications of urgency include circumstances where the person is suffering significant distress or where their health or mental health is seriously deteriorating or where a delay in treatment would result in serious harm to the person.

Similar restrictions apply for a person who is subject to court assessment order, however, if the person is also subject to a temporary treatment order or treatment order, then treatment may also be provided in accordance with that order.

Before making a decision to provide urgent treatment to a patient subject to an assessment order or court assessment order, proper consideration must be given to the decision-making principles for treatment and interventions.

Orders authorising compulsory treatment

The Act requires that a person who is subject to an order for compulsory treatment, such as a temporary treatment order or a treatment order, is to be given treatment for their mental illness. Compulsory treatment can be given on such orders, however, treatment with consent is preferred.

The Act permits an authorised psychiatrist to make a treatment decision for a patient who is subject to an order for compulsory treatment and who:

• does not have capacity to give informed consent to the treatment proposed by the authorised psychiatrist; or
• has capacity to give informed consent to the treatment proposed by the authorised psychiatrist but has not given informed consent to that treatment.

The authorised psychiatrist can make a treatment decision for the patient if the authorised psychiatrist is satisfied that:

• the treatment is clinically appropriate; and
• there is no less restrictive way for the patient to be treated other than the proposed treatment.

An authorised psychiatrist cannot make a treatment decision about electroconvulsive treatment or neurosurgery for mental illness for a patient. See electroconvulsive treatment (ECT) and neurosurgery for mental illness for more information.

Deciding the least restrictive treatment

In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must, to the extent reasonable in the circumstances, have regard, to all of the following:

• the patient’s views and preferences about the proposed treatment, including
  • views and preferences in the person’s advance statement of preferences, if they have one
  • views of the person’s nominated support person if they have one

• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• any beneficial alternative treatment that is reasonably available
• the likely consequences for the patient if the treatment is not administered
• the likely consequences if the treatment is provided without consent
• any second psychiatric opinion that has been given to the authorised psychiatrist in relation to the patient’s treatment
• the views of the persons guardian, if they have one
• the views of any carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

These obligations to have regard to the views of others will be fulfilled if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Before making a treatment decision, the authorised psychiatrist must give proper consideration to the decision-making principles for treatment and interventions

When a treatment decision is not consistent with an advance statement of preferences

An authorised psychiatrist may only make a treatment decision for a patient that is not in accordance with the preferred treatment specified in the patient’s advance statement of preferences if satisfied that the patient’s preferred treatment is:

• not clinically appropriate; or
• is clinically appropriate but is unable to be provided to the patient by the designated mental health service despite the designated mental health service making all reasonable efforts to do so.

If an authorised psychiatrist makes a treatment decision that is not in accordance with the treatment preferences set out in an advance statement of preferences, the authorised psychiatrist must inform the patient and provide reasons for that decision.

Those reasons must be given in writing as soon as practicable and no later than 10 business days to the patient and the patient’s nominated support person if they have one.

Providing medical treatment when a patient does not give informed consent

Medical treatment can be administered to a patient if the patient gives informed consent to the medical treatment. A patient with capacity can refuse medical treatment.

Substitute consent to medical treatment

The Act sets out requirements for who can provide substitute consent for patients for medical treatment. The requirements differ for adult patients (18 years or older) and patients who are under 18 years of age.

Adult patients

If a patient who is 18 years or older does not have capacity to give informed consent to medical treatment, medical treatment can be provided with the consent of the first person in the following list who is reasonably available, willing and able to make a decision about the proposed medical treatment:

• the patient’s medical treatment decision maker
• a person appointed by the Victorian Civil and Administrative Tribunal to make decisions about the proposed medical treatment
• a person appointed under a guardianship order within the meaning of the Guardianship and Administration Act 2019 with power to make decisions concerning the proposed medical treatment (the patient’s guardian)
• the authorised psychiatrist.

Patients under 18 years of age

If a patient who is under 18 years old does not have capacity to give informed consent to medical treatment, medical treatment can be provided with the consent of:

• a person who has the legal authority to consent to the medical treatment for the patient and who is reasonably available, willing and able to make a decision about the proposed medical treatment; or
• if that person is not reasonably available or is not willing and able to make a decision about the proposed medical treatment, the authorised psychiatrist.

Requirements if the authorised psychiatrist is consenting to medical treatment for a patient

The authorised psychiatrist can only consent to medical treatment for a patient if they are satisfied the medical treatment will benefit the patient.

If the authorised psychiatrist is of the opinion that the patient does not currently have capacity to give informed consent to medical treatment but is likely to have that capacity within a reasonable period of time the authorised psychiatrist must not consent to the medical treatment, unless the delay in giving consent could result in serious harm to, or deterioration in, the mental or physical health of the patient.

In deciding if the medical treatment will benefit the patient the authorised psychiatrist must have regard to the extent that is reasonable in the circumstances, to:

• the patient’s views and preferences about the proposed medical treatment and the reasons the patient has those views and preferences, including any recovery outcomes they would like to achieve
• any beneficial alternative medical treatment that is reasonably available
• if the medical treatment is likely to remedy the condition or lessen the symptoms of the condition
• the likely consequences for the patient if the medical treatment is not administered
• any second opinion of a registered medical practitioner that has been given to the authorised psychiatrist
• any relevant values directive given by the patient
• the views of the patient’s nominated support person
• the views of the patient’s guardian, if they have one
• the views of any carer, if the authorised psychiatrist is satisfied that the medical treatment decision will directly affect the care relationship
• the views of the patient’s parent, if the patient is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the patient is the subject of a relevant child protection order.

More information on these terms is available at the Terms and definitions webpage.

Transitional arrangements

If consent to medical treatment is given under the Mental Health Act 2014, and the course of medical treatment consented to has not commenced or been completed by 1 September 2023, the consent to that course of medical treatment is to be taken to be consent given under the Mental Health and Wellbeing Act 2022.

The role of non-legal mental health advocates

Advocates employed by the non-legal mental health advocacy provider (IMHA) act on the instruction of a consumer (where the consumer is aged 16 years or older).

Acting on instruction, they can represent a consumer’s views to mental health and wellbeing service staff and provide non-legal assistance to help the consumer:

• understand information regarding their assessment, treatment, care and recovery
• make decisions and be involved in decisions about their assessment, treatment and care
• express their decisions, views and preferences
• understand and exercise their rights

This may include assisting a person to:

• make an advance statement of preferences or appoint a nominated support person
• seek a second psychiatric opinion
• seek legal advice
• apply to the Mental Health Tribunal
• understand and access the mental health and wellbeing service system
• make a complaint

If a consumer is aged 15 years or younger, the advocate’s role is to promote the views and preferences of the consumer and work with the family, carers and supporters of the consumer to ensure the consumer’s best interests are protected.

Support for advocates to undertake their role

Acting on the instructions of an adult (aged 16 or more) consumer, IMHA advocates can support the consumer, including accessing certain information, attending meetings with, and seeking information on behalf of, the consumer or their supporters.

Mental health and wellbeing service providers must give any reasonable assistance to an advocate to undertake their role.

Accessing advocacy services

The Act requires mental health and wellbeing service providers to notify the non-legal mental health advocacy service provider when certain events occur. These events include when a person is made subject to a temporary treatment order or treatment order, when a person’s order is varied or revoked, if restrictive interventions are used or when certain patients are received at, or transferred to, a designated mental health service.

The Chief Officer has set the requirements for mental health and wellbeing service providers in the Non-legal mental health advocacy service and opt-out register – Protocol for mental health and wellbeing service providers.

The notifications set out in the protocol will allow IMHA mental health advocates to make contact with consumers to offer support.

IMHA, as the non-legal mental health advocacy service provider must keep an ‘opt-out’ register where individuals can indicate that they do not want to be offered or provided with non-legal mental health advocacy services.

The Chief Officer for Mental Health and Wellbeing has set the requirements for IMHA in the Non-legal mental health advocacy service and opt-out register

Individuals can also contact the service directly to seek advocacy support.

Further information, including about how to opt-out, and IMHA contact details for consumers:

• To speak to an advocate call 1300 947 820 (you can leave a message and we will respond within 24 hours) or email contact@imha.vic.gov.au.
• When do we contact you on the Independent Mental Health Advocacy website.
• Tell us not to contact you on the Independent Mental Health Advocacy website.

Further information

To speak to an advocate call 1300 947 820 (you can leave a message and we will respond within 24 hours) or email contact@imha.vic.gov.au

For information about when IMHA will contact consumers and how to opt-out, see When do we contact you and Tell us not to contact you on the Independent Mental Health Advocacy website.

Advance statements of preferences are written by a person saying what treatment, care and support they prefer should they become subject to an order that authorises compulsory assessment or treatment.

An advance statement of preferences is a way of ensuring that treatment, care and support decisions better align with a patient’s preferences.

Making an advance statement of preferences

A person can make an advance statement of preferences at any time, provided they understand what the advance statement of preferences is, the consequences of making it and how to revoke it.

An advance statement of preferences can be made using the advance statement of preferences form, but will be valid as long as it:

• is signed and dated by the person making the advance statement of preferences
• is witnessed by another adult
• includes a statement signed by the witness stating that:
  • in their opinion, the person understands what an advance statement of preferences is, the consequences of making it and how to revoke it
  • in their opinion, the person appears to be making the statement of their own free will
  • they observed the person sign the advance statement of preferences
  • they (the witness) are an adult.

A person does not have to consult with their treating team, carer or family when making an advance statement of preferences. However, it can be a good idea to involve the treating team, family and carers so they are aware of the person’s treatment preferences and know that the advance statement of preferences exists and where it can be found.

Contents of an advance statement of preferences

An advance statement of preferences sets out a person’s treatment, care and support preferences and may include information about:

• treatment they find effective
• treatment that has been less effective in the past
• their views and preferences about electroconvulsive treatment
• support preferences to assist them to communicate and participate in decision-making
• preferences about who may be provided with their health information, including the name and details of any person to be informed that the person is receiving compulsory assessment or treatment
• the name and contact details of their nominated support person or advocate
• preferences about who may make a complaint to the Mental Health and Wellbeing Commission on their behalf.

Changing or revoking an advance statement of preferences

It is recommended that a person considers whether the preferences expressed in their advance statement of preferences remain current. An advance statement of preferences cannot be amended once made. If a person’s treatment preferences have changed, they must make a new advance statement.

An advance statement of preferences does not expire unless a new advance statement of preferences is made, or the person revokes their advance statement.

A revocation of an advance statement of preferences must:

• be in writing and state that the advance statement is revoked
• be signed and dated by the person revoking the advance statement of preferences
• be witnessed by an adult
• include a statement signed by the witness stating that -
  • in their opinion, the person understands the consequences of revoking the advance statement of preferences including that it will no longer be in effect for the purposes of the Act
  • in their opinion, they are revoking the statement of their own free will
  • they observed the person revoking the statement sign it
  • they (the witness) are an adult.

Designated mental health services must make reasonable efforts to give effect to an advance statement of preferences

The Act requires a designated mental health service to take all reasonable steps to find out if a patient whose assessment or treatment they are responsible for has an advance statement of preferences in effect.

The steps that should be taken will depend on the circumstances but may, for example, include:

• asking the patient, their nominated support person or their family, carer or other supporter if the person has made an advance statement of preferences
• checking the person’s file to see if there is a record of an advance statement of preferences having been made.

If the person does have an advance statement of preferences in effect, the designated mental health service must ensure all reasonable efforts are made to give effect to the statement.

The Act also requires an authorised psychiatrist to have regard to the views and preferences expressed in a patient’s advance statement or preferences when making a treatment decision, including a decision to seek approval for the use of electroconvulsive treatment (ECT).

Decision makers will also have regard to an advance statement of preferences in making a range of other decisions, including when making a temporary treatment order or treatment order; giving or reviewing a second psychiatric opinion; granting leave of absence; authorising restrictive interventions; or disclosing a person’s health information without consent.

Overriding treatment preferences in an advance statement of preferences

An authorised psychiatrist may only make a treatment decision that is not in accordance with the treatment preferences expressed in a patient’s advance statement of preferences if:

• they are satisfied that the patient’s preferred treatment is not clinically appropriate; or
• the patient’s preferred treatment is unable to be provided by the designated mental health service, despite all reasonable efforts being made to provide that preferred treatment.

If an authorised psychiatrist makes a treatment decision that is not in accordance with the treatment preferences set out in an advance statement of preferences, the authorised psychiatrist must inform the patient and provide reasons for that decision.

Those reasons must be given in writing within 10 business days to the patient and the patient’s nominated support person if they have one.

Transitional arrangements

An advance statement that was made before 1 September 2023 that has not been revoked will be treated as an advance statement of preferences under the Mental Health and Wellbeing Act 2022 and will remain in effect unless it is revoked or a new statement is made.

Forms

Role of the nominated support person

The role of a nominated support person takes effect when the person who appointed the nominated support person becomes a patient (that is if they are being assessed or treated on a compulsory basis).

A nominated support person for a patient will:

• advocate for the views and preferences expressed by the patient, including any preferences they have written in an advance statement of preferences
• support the patient to make and participate in decisions
• advocate for any appropriate supports that would assist the patient to communicate and participate in decision making
• support the patient to understand information and decisions
• support the patient to communicate their views, preferences, decisions, questions or concerns
• support the patient to exercise any rights the patient has under the Act.

A nominated support person will be given information and be consulted at key points in the patient’s treatment and care such as when a patient is placed on a Temporary Treatment Order or where there is a Mental Health Tribunal hearing.

Designated mental health services must make reasonable efforts to support a nominated support person to perform their role

When a designated mental health service becomes responsible for a patient’s assessment or treatment that service must take all reasonable steps to find out if a patient has a nominated support person.

If there is a nominated support person, the service must take all reasonable steps to support them to perform their role. This may include allowing the nominated support person to view documents related to the persons treatment and care, providing the nominated support person with information and giving them reasonable opportunities to attend meetings between the patient and their treating team.

Appointing a nominated support person

A person can appoint a nominated support person at any time, provided they understand what that means and the consequences of making someone their nominated support person.

Anyone can be a nominated person.

Before appointing a nominated support person, you should:

• talk to the person you are planning to nominate about the support you want, and the person’s availability and ability to take on the role
• understand that the person will be consulted about your treatment and be given information about your health
• discuss with the nominated support person how you expect them to respond to contacts from the treating team and how you want your personal information handled.

A nominated support person appointment can be made using the nominated support person form but will be valid as long as it:

• is in writing and states the name and contact details of the nominated support person
• is signed and dated by the person making the nomination
• is witnessed by an adult (the witness cannot be the person who is being made the nominated support person)
• includes a statement signed by the witness stating that:
  • in their opinion, the nominating person understands what the nomination is and that they may revoke it
  • in their opinion, the nominating person is making the nomination of their own free will
  • they observed the nominating person sign the nomination
  • they (the witness) are an adult.

The appointment of the nominated support person is complete when the nominated support person signs a statement accepting the nomination.

Before accepting a nomination, the nominated support person should consider if they are available, willing and able to undertake the role and to do so in a way that will support a constructive relationship between the patient and their treating team.

Ending an appointment

Once appointed, a person remains a nominated support person until:

• the person who made the nomination revokes the appointment or appoints a new nominated support person; or
• the nominated support person resigns from the role.

Revoking a nominated support person appointment

A revocation of a nominated support person appointment must:

• be in writing and state that the nomination is revoked
• be signed and dated by the person revoking the nomination
• be witnessed by an adult witness
• include a statement signed by the witness stating that -
  • in their opinion, the person understands what a revocation is and the consequences of the revocation including that the nominated support person will no longer have the responsibilities, or perform the role, of a nominated support person
  • in their opinion, the person is revoking the nomination of their own free will
  • they observed the person revoking nomination
  • they (the witness) are an adult.

If a person revokes a nomination, they must take reasonable steps to let the nominated support person know and, if they are being treated as a compulsory patient, must inform the relevant authorised psychiatrist.

Resigning as a nominated support person

A nominated support person may resign from the role at any time. The resignation must:

• be in writing, include the person’s full name and state that the person resigns from the role of nominated support person; and
• be signed and dated by the nominated support person.

A nominated support person who resigns must take reasonable steps to let the person who appointed them know and, if the person is receiving compulsory assessment or treatment, must inform the relevant authorised psychiatrist.

A person who has been appointed as a nominated person before 1 September 2023 becomes a nominated support person under the Mental Health and Wellbeing Act 2022 and that appointment remains valid unless the nomination is revoked or the nominated support person resigns from the role.

Consultation and notification of a nominated support person

Consultation

A nominated support person should be consulted as required by the Act, including, when:

• an authorised psychiatrist makes a treatment decision for a patient, including a decision about medical treatment
• restrictive interventions are being authorised
• a Temporary Treatment Order is made, varied, revoked or expires
• an Authorised Psychiatrist applies to the Tribunal for the making of a Treatment Order
• the Mental Health Tribunal makes a Treatment Order
• the setting of a Temporary Treatment Order or Treatment Order is determined or varied
• a Court Assessment Order, a Temporary Treatment Order or a Treatment Order is varied to allow assessment or treatment of a patient by another designated mental health service
• the Mental Health Tribunal conducts a hearing to determine an application to review an order variation
• the Mental Health Tribunal conducts a hearing to determine the setting of a Treatment Order after a community treatment order is varied to an inpatient treatment order, or conducts a hearing following application for revocation of a Temporary Treatment Order or Treatment Order
• a psychiatrist gives a second psychiatric opinion
• the Chief Psychiatrist reviews a patient’s treatment following an application for review after a second psychiatric opinion report is made
• the authorised psychiatrist makes an application to the Mental Health Tribunal to perform a course of electroconvulsive treatment on an adult patient or young patient
• the authorised psychiatrist determines whether a security or forensic patient will be taken to another designated mental health service
• an authorised psychiatrist grants, varies or revokes a patient a leave of absence
• the Justice Secretary grants, varies or revokes monitored leave for a security patient
• an application is made to the Mental Health Tribunal to transfer a compulsory patient to an interstate mental health facility

In many circumstances, the obligation to consult the nominated person arises only to the extent that is reasonable in the circumstances. For example, if the Mental Health Tribunal sends the nominated person a notice of the patient’s hearing but the nominated person does not attend, the Mental Health Tribunal’s obligations are fulfilled.

Notification

A nominated support person should be informed as required by the Act, including when:

• an Assessment Order, Court Assessment Order, Temporary Treatment Order or Treatment Order is made, varied, revoked or expires (or an assessment order is extended)
• the Mental Health Tribunal lists a matter for hearing
• a Court Assessment Order is completed
• a patient’s right to communicate is restricted
• an authorised psychiatrist makes a treatment decision for a patient that is not in accordance with the patient’s advance statement of preferences (in which case written reasons must be provided to the nominated support person)
• restrictive interventions are used on a person
• a second psychiatric opinion report is made (the psychiatrist must ensure reasonable steps are taken to provide the nominated support person with a copy of the report)
• an authorised psychiatrist determines that, contrary to a second psychiatric opinion, the criteria apply to a patient or the authorised psychiatrist does not adopt all of the recommendations of a second psychiatric opinion (in which cases written reasons must be provided to the nominated support person)
• the Chief Psychiatrist has reviewed a patient’s treatment following an application for review after a second psychiatric opinion report is made (reasonable steps must be taken to notify the nominated support person of the outcome of the review in writing)
• the Mental Health Tribunal grants or refuses to grant an application for the performance of electroconvulsive treatment on a patient
• the authorised psychiatrist grants, varies or revokes a patient a leave of absence
• the Justice Secretary grants, varies or revokes monitored leave for a security patient
• a patient is absent without leave from a designated mental health services
• the Chief Psychiatrist makes a written direction to a designated mental health service in respect of the mental health services provided to the person
• a security or forensic patient is received at a designated mental health service or taken to another designated mental health service
• a security patient is discharged as a security patient
• when an interstate transfer order or an interstate transfer of treatment order is made for a patient

In many circumstances, the obligation to notify the nominated support person arises only to the extent that is reasonable in the circumstances. For example, an authorised psychiatrist must ensure that reasonable attempts have been made to telephone the nominated support person to tell them that the patient’s Treatment Order has been varied.

If a patient doesn’t have a nominated support person

There is no requirement for a patient to have a nominated support person. The Act requires the mental health and wellbeing service provider to support the patient to make decisions and participate in decision making, understand information and their rights and communicate their views, preferences, questions, or decisions.

In addition, a patient may be supported by a non-legal mental health advocate or their family, carer or other supporters if appropriate.

Nominated support person forms

.

The Act recognises and includes specific provisions to support the important role played by families, carers and supporters of people receiving mental health and wellbeing services.

Mental Health and Wellbeing Principles

The Mental Health and Wellbeing Principles of the Act include two key principles that recognise the important role of families, carers and supporters:

• Family and carer principle — Families, carers and supporters (including children) of a person receiving mental health and wellbeing services are to be supported in their role in decisions about the person’s assessment, treatment and recovery.
• Lived experience principle — The lived experience of a person with mental illness or psychological distress and their families, carers and supporters is to be recognised and valued as experience that makes them valuable leaders and active partners in the mental health and wellbeing service system.

Mental health and wellbeing service providers are required to make all reasonable efforts to comply with the mental health and wellbeing principles and to give proper consideration to those principles when making a decision under the Act.

Consultation and notification of carers, parents and guardians

The Act identifies circumstances in which carers; parents of people under the age of 16 years and guardians must be consulted and notified.

Consideration of the views of carers

Under the Act, a carer means a person, including a person under the age of 18 years, who provides care to another person with whom he or she is in a care relationship, but does not include a parent if the person to whom the care is provided is under 16 years of age.

The Act requires a carer to be consulted in a range of circumstances if decisions being made will affect the carer and the care relationship.

A person is in a care relationship if they provide or receive care because one of the people in the relationship has a disability, is older, has a mental illness or an ongoing medical condition.

A person is not in a care relationship:

• merely because they are the spouse or domestic partner of a person, the parent, child or other relative of a person, or because they live with a person; or
• if they provide the care under a service or employment contract, as part of employment or voluntary work for a community organisation or as part of an education or training requirement.

The Act requires that if the carer and the care relationship will be affected, regard must be had to the extent reasonable in the circumstances to the views of a carer when:

• an authorised psychiatrist makes a treatment decision for a patient, including a decision about medical treatment
• a Temporary Treatment Order is made, varied, revoked or expires
• an authorised psychiatrist applies to the Mental Health Tribunal for the making of a Treatment Order
• the Mental Health Tribunal makes a Treatment Order
• the setting of a Temporary Treatment Order or Treatment Order is determined or varied
• a Court Assessment Order, a Temporary Treatment Order or a Treatment Order is varied to allow assessment or treatment of a patient by another designated mental health service
• the Mental Health Tribunal conducts a hearing to determine an application to review an order variation
• the Mental Health Tribunal conducts a hearing to determine the setting of a Treatment Order after a community treatment order is varied to an inpatient treatment order, or conducts a hearing following application for revocation of a Temporary Treatment Order or Treatment Order
• a psychiatrist gives a second psychiatric opinion
• the Chief Psychiatrist reviews a patient’s treatment following an application for review after a second psychiatric opinion report is made
• an authorised psychiatrist makes an application to the Mental Health Tribunal to perform a course of electroconvulsive treatment on an adult patient or young patient
• an authorised psychiatrist determines whether a security or forensic patient will be taken to another designated mental health service
• an authorised psychiatrist grants, varies or revokes a patient a leave of absence
• the Justice Secretary grants, varies or revokes monitored leave for a security patient
• an application is made to the Mental Health Tribunal to transfer a compulsory patient to an interstate mental health facility.

Consideration of the views of parents and guardians

The Act defines a parent, in relation to a person under the age of 18 years, to include:

• a person who has custody or daily care and control of the person;
• a person who has all of the duties, powers, responsibilities and authority (whether conferred by a court or otherwise) which by law parents have in relation to their children; or
• any other person who has the legal right to make decisions about medical treatment of the person.

The Act requires that a parent of a person under 16 years of age must be consulted as the same key points as set out above for carers.

The Secretary to the Department of Families, Fairness and Housing must also be consulted at these same key points if the Secretary has parental responsibility for the young person involved under a relevant child protection order.

The same consultation requirements apply to a guardian if the person has one appointed. A guardian is a person appointed in a guardianship order as a guardian in relation to one or more specified personal matters in accordance with the Guardianship and Administration Act 2019.

In most circumstances, the obligation to consult carers, parents and guardians arises only to the extent that is reasonable in the circumstances.

Notification of carers, parents and guardians

The Act also sets out a range of events about which notifications must be made to:

• a carer if the carer and the care relationship will be affected
• a parent if the person is under 16 years of age
• a guardian if the person has one appointed
• the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the young person involved under a relevant child protection order

These events are when:

• an Assessment Order, Court Assessment Order, Temporary Treatment Order or Treatment Order is made, varied, revoked or expires (or an assessment order is extended)
• the Mental Health Tribunal lists a matter for hearing
• a Court Assessment Order is completed
• a patient’s right to communicate is restricted
• restrictive interventions are used on a person
• a second psychiatric opinion report is made (the psychiatrist must ensure reasonable steps are taken to provide a copy of the report)
• an authorised psychiatrist determines that, contrary to a second psychiatric opinion, the criteria apply to a patient or the authorised psychiatrist does not adopt all of the recommendations of a second psychiatric opinion (in which cases written reasons must be provided)
• the Chief Psychiatrist has reviewed a patient’s treatment following an application for review after a second psychiatric opinion report is made (reasonable steps must be taken to provide written notification of the outcome of the review)
• the Mental Health Tribunal grants or refuses to grant an application for the performance of electroconvulsive treatment
• the Mental Health Tribunal grants or refuses to grant an application for the performance of electroconvulsive treatment on a patient
• the Justice Secretary grants, varies or revokes monitored leave for a security patient
• a patient is absent without leave from designated mental health services
• the Chief Psychiatrist makes a written direction to a designated mental health service in respect of the mental health services provided to the person
• a security or forensic patient is received at a designated mental health service or taken to another designated mental health service
• a security patient is discharged as a security patient
• when an interstate transfer order is an interstate transfer if treatment order is made for a patient.

In most circumstances, the obligation to notify arises only to the extent that is reasonable in the circumstances.

Carers, parents and guardians will also be given copies of any Orders made and relevant statements of rights.

Nominated support persons

A nominated support person is someone appointed by a person to support them to express their views and preferences if they become unwell and receive compulsory assessment or treatment.

This may be a person’s family member or carer, but anyone can be a nominated support person.

Where a person nominates someone other than a carer to be their nominated person, a carer must still receive information and have their views considered as described above.

Read more about nominated support persons.

Information disclosure to families, carers and supporters

The Act adopts a consent-driven approach to information sharing. As a general rule, consumer consent is required for the sharing of health and personal information, and consumers are able to withdraw this consent at any time.

The Act includes a positive duty for providers to share some or all of a person's health information to family, a carer or a supporter, with consumer consent, following the consumer's admission or discharge from an inpatient service.

Provisions requiring parents and carers be consulted and notified about key events means that information about a patient’s treatment will necessarily be given to parents or carer so that they can effectively participate in a consultation, or so that they can take action in response to being notified about an event.

Separate to information being disclosed under the consultation and notification provisions, if a patient is unable to consent or refuses to consent to sharing information, carers can be given information if they need the information to provide care to a patient and to prepare for their caring role. A person disclosing information in these circumstances must have regard to the patient’s views and preferences, including any preferences expressed in an advance statement.

This information may be about the treatment and management of mental illness, how to respond to behaviours of concern, and how to access practical assistance. It may also include information to generally assist carers to better support the person with mental illness.

The Act also allows for disclosure of information about a person to parents where the person is under 16 years of age.

Where a family member or friend is not directly responsible for providing care, the Act permits a mental health service provider to disclose a person’s health information in ‘general terms’, for example, advising whether an inpatient is well enough to receive visitors.

For more information about information sharing, see information sharing under the Act.

How are complaints handled?

The Mental Health and Wellbeing Commission receives, manages and resolves complaints about mental health services provided to consumers.

Anyone can make a complaint about mental health and wellbeing services.

Complaints can be made to the Commission in relation to any matter arising from:

• the provision of mental health and wellbeing services by a mental health and wellbeing service provider
• a failure by a mental health and wellbeing service provider to provide services to a consumer
• a failure by a mental health and wellbeing service provider to make all reasonable efforts to comply with the principles of the Act
• the way in which a complaint was handled by a mental health and wellbeing service provider.

Complaints can also be made by a carer, family member or supporter in relation to their experience in that role.

Read more about the Mental Health and Wellbeing Commission.

The Mental Health and Wellbeing Act 2022 (the Act) regulates and includes safeguards in the use of:

• Compulsory assessment and treatment
• Restrictive interventions
• Electroconvulsive treatment (ECT)
• Neurosurgery for mental illness

Decision making principles for treatment and interventions

The Act introduces new rights-based decision making principles for treatment and interventions to which decision makers must give proper consideration when making decisions in relation to a patients assessment or treatment or the use of restrictive interventions.

The Principles

Care and transition to less restrictive support principle

Compulsory assessment and treatment are to be provided with the aim of promoting the person's recovery and transitioning them to less restrictive treatment, care and support. To this end, a person who is subject to compulsory assessment or treatment is to receive comprehensive, compassionate, safe and high-quality mental health and wellbeing services.

Consequences of compulsory assessment and treatment and restrictive interventions principle

The use of compulsory assessment and treatment or restrictive interventions significantly limits a person's human rights and may cause possible harm including:

• serious distress experienced by the person
• the disruption of the relationships, living arrangements, education or employment of the person.

No therapeutic benefit to restrictive interventions principle

The use of restrictive interventions on a person offers no inherent therapeutic benefit to the person.

Balancing of harm principle

Compulsory assessment and treatment or restrictive interventions are not to be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use.

Autonomy principle

The will and preferences of a person are to be given effect to the greatest extent possible in all decisions about assessment, treatment, recovery and support, including when those decisions relate to compulsory assessment and treatment.

Obligations to give proper consideration to the decision-making principles

Anyone other than the Mental Health Tribunal, who has authority to make a decision or exercise a power in respect of the care or treatment of a patient must give proper consideration to the decision making principles when making a decision or exercising a power. This includes:

• when seeking informed consent
• when making a treatment decision or providing consent to medical treatment on behalf of a patient where the patient does not have capacity to provide informed consent
• when applying for authorisation to perform electroconvulsive treatment or neurosurgery for mental illness
• when authorising or exercising other powers related to the use of restrictive interventions
• when exercising powers related to assessment orders, court assessment orders, temporary treatment orders, or treatment orders.

Proper consideration is the same test that applies to consideration of rights under the Charter of Human Rights and Responsibilities Act 2006. In practice what this means will vary according to the context.

In circumstances where a decision is urgent or needs to be made under pressure, ‘proper consideration’ will be different to circumstances where there is more time for a decision or where the impact of the decision may be particularly significant.

Proper consideration does not mean that individual decisions must always be informed by legal advice, or that a sophisticated formula or process must be followed, but consideration of the decision making principles must be more than a token, tick box or formality.

The Chief Psychiatrist has prepared interim guidance to assist clinical mental health service providers meet obligations regarding the decision making principles. The guidance is available at Decision-making principles for treatment and interventions.

Neurosurgery for mental illness is a surgical procedure performed on the brain. It may be used to treat people with severe and incapacitating mental illness who have not responded to other treatments.

Neurosurgery for mental illness is mostly used to treat severe depression and obsessive-compulsive disorder. A neurosurgeon always performs it.

Application to perform neurosurgery for mental illness

A psychiatrist may apply to the Mental Health Tribunal for approval to have neurosurgery for mental illness performed on a person only if the person has given informed consent in writing to the neurosurgery.

No guardian, parent or other substitute decision-maker can consent to neurosurgery for mental illness on behalf of another person.

The person’s treating psychiatrist must apply to the Mental Health Tribunal for a hearing and provide the Mental Health Tribunal with written evidence of the person’s informed consent.

Mental Health Tribunal approval to perform neurosurgery for mental illness

Neurosurgery can only be performed with the approval of the Mental Health Tribunal. The Mental Health Tribunal must hear and determine an application for the performance of neurosurgery for mental illness within 30 business days of receipt of the application.

The Tribunal can only approve neurosurgery for mental illness if it is satisfied that:

• the person has given informed consent in writing, and
• the neurosurgery for mental illness will benefit the person.

In determining whether the performance of neurosurgery for mental illness will benefit the person, the Tribunal must have regard to:

• whether the neurosurgery for mental illness is likely to remedy the mental illness or alleviate the symptoms and reduce the ill effects of the person's mental illness
• the likely consequences for the person if neurosurgery for mental illness is not performed
• any beneficial alternative treatments that are reasonably available and the person’s views and preferences about those treatments
• the nature and degree of any discomfort, risks and common or expected side effects associated with the proposed neurosurgery for mental illness, including the person’s views and preferences about any such discomfort, risks or common or expected side effects.

If the Tribunal is not satisfied about these matters, it must refuse to approve neurosurgery for mental illness.

A person for whom the Mental Health Tribunal has made an order for neurosurgery for mental illness must be provided with the relevant statement of rights.

After neurosurgery for mental illness

The treating psychiatrist or psychiatrist who made the application to the Mental Health Tribunal must provide a written report to the Chief Psychiatrist within three months after the surgery is performed and again within 9 to 12 months of the surgery being performed. The report must describe the procedure and outcome of the neurosurgery for mental illness.

The Chief Psychiatrist monitors the outcomes of neurosurgery and collects data on the effectiveness of the treatment. The Chief Psychiatrist may ask the psychiatrist who provided the report to give further information relating to the neurosurgery for mental illness and the results of that surgery.

The Act provides for and regulates the use of restrictive interventions on a person who is receiving mental health and wellbeing services in a designated mental health service.

This means that if restrictive interventions are used on a person in these settings, they must be authorised, monitored and reported in accordance with the Act. This is regardless of whether or not the person is subject to an order authorising compulsory assessment or treatment.

Restrictive interventions include seclusion, bodily restraint and chemical restraint.

Seclusion

Seclusion means the sole confinement of a person to a room or any other enclosed space from which the person cannot leave.

Bodily restraint

Bodily restraint means:

• physical restraint – the use by a person of their body to prevent or restrict another person's movement. Physical restraint does not include the giving of physical support or assistance to a person in the least restrictive way that is reasonably necessary to enable the person to be supported or assisted to carry out daily activities; or to redirect the person because they are disoriented; or
• mechanical restraint – the use of a device to prevent or restrict a person’s movement.

Chemical restraint

Chemical restraint means the giving of a drug to a person for the primary purpose of controlling the person's behaviour by restricting their freedom of movement. Chemical restraint does not include the giving of a drug to a person for the purpose of treatment or medical treatment.

Reducing the use of restrictive interventions

The Act includes an objective with an aim of reducing the use of restrictive interventions with the aim of eliminating their use within 10 years.

There is an obligation on all mental health and wellbeing service providers and people performing functions or exercising powers under the Act to aim to reduce, and eventually eliminate the use of restrictive interventions.

To support this goal, the Act includes a function for the Secretary and Chief Officer to set targets to reduce and ultimately eliminate the use of restrictive interventions. This will be supported through a strategy towards elimination of seclusion and restraint being led out of the Department of Health.

Authorising the use of restrictive interventions

A restrictive intervention may only be authorised if it is the least restrictive option

A restrictive intervention may only be used after all reasonable and less restrictive options have been tried or considered and found to be unsuitable in the circumstances.

To determine if there is no less restrictive option available, a person authorising the use of restrictive interventions must have regard, to the greatest extent possible in the circumstances to:

• the likely impact of the use of the restrictive intervention on the person, considering the person’s views and preferences, and any past experience of trauma;
• the person’s views and preferences relating to the use of restrictive interventions (including views and preferences expressed in an advance statement of preferences of the person or expressed by the person’s nominated support person, if they have one); and
• the person’s culture, beliefs, values and personal characteristics.

A restrictive intervention may only be authorised when necessary

A restrictive intervention may only be used where necessary to prevent serious and imminent harm to the person or another person.

Bodily restraint may also be used where necessary to administer treatment or medical treatment.

Chemical restraint may also be used in defined circumstances when a person is being transported under the Act.

Decision making principles for treatment and intervention

A person authorising the use of restrictive interventions must give proper consideration to the decision-making principles for treatment and interventions.

Responsibility for authorising restrictive interventions

The use of restrictive interventions must be authorised by an authorised psychiatrist.

If an authorised psychiatrist is not reasonably available:

• seclusion or bodily restraint may be authorised by – a registered medical practitioner or a nurse in charge ; and
• chemical restraint may be authorised by – a registered medical practitioner or a nurse practitioner acting within their ordinary scope of practice.

If a person other than an authorised psychiatrist authorises the use of a restrictive intervention, that person must, as soon as practicable, notify the authorised psychiatrist.

Authorisation for the use of restrictive intervention must end if no longer necessary

The authorisation for the use of restrictive interventions must be kept under review.

The authority to use a restrictive intervention ends if a person who may authorise the use of restrictive interventions is satisfied that the restrictive intervention is no longer necessary for the purpose for which it was authorised. If this occurs, that person must immediately take steps to release the person from the restrictive intervention.

Urgent authorisation of physical restraint by a nurse

If physical restraint of a person is necessary to prevent imminent and serious harm to that person or another person, and an authorised psychiatrist, registered medical practitioner or nurse in charge is not immediately available a registered nurse may authorise the use of physical restraint.

A registered nurse who authorises the urgent use of physical restraint must notify the authorised psychiatrist, registered medical practitioner or nurse in charge as soon as practicable. Once notified, if the physical restraint is continuing, the person notified must either:

• authorise the continued use of physical restraint; or
• refuse to authorise continued use and release the person from restraint.

Monitoring and support of a person subject to restrictive interventions

Facilities and supplies to be provided

A person who is subject to a restrictive intervention must be provided with facilities and supplies that meet their needs and maintain their dignity.

It is the responsibility of the person who authorises the use of restrictive intervention to ensure this occurs. In determining what facilities and supplies are to be provided, regard must be had, to the greatest extent possible in the circumstances to:

• the person’s views and preferences and any past experience of trauma
• the person’s views and preferences relating to the use of restrictive interventions (including views and preferences expressed in an advance statement of preferences of the person or expressed by the person’s nominated support person, if they have one)
• the person’s culture, beliefs, values and personal characteristics.

Monitoring

The Act sets out requirements for the monitoring, clinical review and examination of a person while restrictive interventions are being used on them.

Continuous observation

When bodily restraint is used on a person, they must be continuously observed by a registered nurse or registered medical practitioner for the entire time of the restraint.

When chemical restraint is used on a person, they must be continuously observed by a registered nurse or registered medical practitioner for at least an hour after the chemical restraint is administered.

Clinical review

When any restrictive intervention is used on a person, a registered nurse or registered medical practitioner must clinically review the person at least every 15 minutes, or more frequently if appropriate given the person’s condition.

Examination

When an authorised psychiatrist authorises or is notified of the use of restrictive intervention on a person, the authorised psychiatrist must, as soon as practicable, examine the person and determine if continued use of restrictive interventions is necessary.

If the authorised psychiatrist is not reasonably available to examine the person, the authorised psychiatrist must ensure that the person is examined by a registered medical practitioner. The registered medical practitioner must determine if continued use of restrictive interventions is necessary.

The authorised psychiatrist must then conduct an examination of the person as often as is appropriate, which must be at least every four hours. If an authorised psychiatrist is not practicably able to conduct an examination, a registered medical practitioner may do so when so directed by the authorised psychiatrist.

Documentation and notifications of the use of restrictive interventions

Documentation

As soon as practicable after authorising the use of a restrictive intervention, the person who authorised the use must document –

• the reasons why the restrictive intervention is necessary; and
• all the other less restrictive means tried or considered for the person and why those less restrictive means were found unsuitable.

Notification of the non-legal mental health advocacy service provider

An authorised psychiatrist must ensure the non-legal mental health advocacy service provider is notified as soon as practicable after the commencement of the use of a restrictive intervention on a person. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issued by the Chief Officer. These Protocols will be published on the Department of Health website once finalised.

Notification of others

As soon as practicable after the commencement of the use of a restrictive intervention on a person, the authorised psychiatrist must ensure that specified associated people are notified of the use of restrictive intervention, the nature of the intervention and the reason for its use.

The associated people to be informed about the making of a temporary treatment order are the person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the restrictive intervention will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Review of the use of restrictive interventions

As soon as practicable after the use of a restrictive intervention ends, the authorised psychiatrist must ensure that the use of the restrictive intervention is reviewed, with the review to be completed in a timely manner.

The person on whom the restrictive intervention was used must be offered an opportunity to participate in this review. If the person accepts that offer, they may have their nominated support person, a mental health advocate a family member, carer or other supporter participate in the review.

Reporting on the use of restrictive interventions

The authorised psychiatrist of a designated mental health service must provide written reports to the chief psychiatrist on the use of restrictive interventions in the designated mental health service. The report must contain the details required by and be provided within the time specified by the chief psychiatrist.

Chemical restraint during transport

Chemical restraint may be used on a person by a registered medical practitioner (or a registered nurse or registered paramedic employed by Ambulance Victoria acting on direction of a registered medical practitioner) for the purpose of transporting the person to or from a designated mental health service or any other place under the Act.

Existing powers of a registered nurse or registered paramedic to administer sedation within the ordinary scope of their practice are not changed by the Act.

Transitional arrangements

Bodily restraint or seclusion authorised prior to 1 September 2023 will be taken to be bodily restraint or seclusion authorised under the Mental Health and Wellbeing Act 2022.

Electroconvulsive treatment (ECT) is a safe and effective treatment for some mental illness, particularly severe depression and other mood disorders.

When can ECT be performed?

ECT can be performed on an adult, regardless of whether that adult is receiving mental health services on a voluntary or a compulsory basis if:

• the adult has given informed consent. Consent must be given personally and in writing. No guardian, parent or other substitute decision-maker may consent to ECT on behalf of an adult; or
• if the person does not have capacity, the Mental Health Tribunal has made an order authorising a course of ECT for the person

ECT can be performed on young people, that is people under 18 years of age, if the Mental Health Tribunal has made an order authorising a course of ECT.

The requirements for authorisation for ECT vary depending on whether the person is an adult (18 years or over) or a young person (under 18 years) or if the person is a patient.

Patient is a term used in the Act to refer to a person who is:

• subject to
  • an assessment order; or
  • a court assessment order; or
  • a temporary treatment order; or
  • a treatment order; or
• is a forensic patient; or
• is a security patient

For more information on these terms, see Terms and definitions

Summary of authorisation requirements for ECT

Adult patients

The patient provides informed consent in writing to ECT.

Or the Mental Health Tribunal authorises a course of ECT on being satisfied:

• the patient does not have capacity to provide informed consent to ECT; and
• there is no less restrictive way for the patient to be treated.

Adults who are not patients

The person provides informed consent in writing to ECT.

Or the Mental Health Tribunal authorises a course of ECT on being satisfied:

• the person does not have capacity to provide informed consent to ECT; and
• the person has an instructional directive consenting to ECT or the person’s medical treatment decision maker has given informed consent to ECT; and
• there is no less restrictive way for the person to be treated.

Young patients

The Mental Health Tribunal authorises a course of ECT if the young patient has given informed consent in writing to ECT.

Or the Mental Health Tribunal authorises a course of ECT on being satisfied:

• the young patient does not have capacity to provide informed consent to ECT; and
• there is no less restrictive way for the young patient to be treated.

Young people who are not patients

The Mental Health Tribunal authorises a course of ECT if the young person has given informed consent in writing to ECT.

Or the Mental Health Tribunal authorises a course of ECT on being satisfied:

• the young person does not have capacity to provide informed consent to ECT; and
• the young person’s medical treatment decision maker has given informed consent in writing to ECT; and
• there is no less restrictive way for the young person to be treated.

Application to the Mental Health Tribunal for authority to perform a course of ECT

An authorised psychiatrist may apply to the Mental Health Tribunal for authority to perform a course of ECT on:

• an adult patient if:
  • the patient does not have capacity to give informed consent to receiving ECT; and
  • the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated
• a young patient if the young patient has personally given informed consent to receiving a course of ECT; and
• a young patient if:
  • the young patient does not have capacity to give informed consent to receiving ECT; and
  • the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated.

A psychiatrist may apply to the Mental Health Tribunal for authority to perform a course of ECT on:

• an adult person (who is not a patient) if:
  • the person does not have capacity to give informed consent to receiving ECT; and
  • the person has an instructional directive giving informed consent to ECT or the person’s medical treatment decision maker gives informed consent in writing to a course of ECT; and
  • the psychiatrist is satisfied that there is no less restrictive way for the person to be treated;
• a young person (who is not a patient), if the young person has personally given informed consent to receiving a course of ECT; and
• a young person (who is not a patient) if:
  • the young person does not have capacity to give informed consent to receiving ECT; and
  • the young person’s medical treatment decision maker has given consent in writing to the course of ECT; and
  • the psychiatrist is satisfied that there is no less restrictive way for the patient to be treated.

In deciding that there is no less restrictive way for a person (regardless of age and whether they are a patient or not) to be treated, the authorised psychiatrist or psychiatrist (as the case may be) must have regard to:

• the person’s views and preferences about ECT, and any beneficial alternative treatment that is reasonably available and the reasons for those views and preferences, including any recovery outcomes the patient would like to achieve
• whether the ECT is likely to remedy or lessen the symptoms of mental illness
• the likely consequences for the person if ECT is not administered any psychiatric opinion that has been given by another psychiatrist (including any second psychiatric opinion given to an authorised psychiatrist if the person is a patient)
• the views of the person’s guardian, if they have one
• the views of any carer, if the psychiatrist or authorised psychiatrist is satisfied that the decision will directly affect the carer or care relationship
• if the person is a patient – any views and preferences expressed in an advance statement of preferences and by the patient’s nominated support person
• if the person is not a patient – any relevant values directive given by the person and the views of the person’s medical treatment decision maker and support person
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

For more information on these terms, please see Terms and definitions.

A psychiatrist or authorised psychiatrist will have fulfilled this obligation if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Mental Health Tribunal authorisation for performance of ECT

The Mental Health Tribunal must list a hearing within 5 business days of an application for authority to perform ECT and will make an order authorising a course of ECT if satisfied, that the application relates to:

• an adult patient, where the patient does not have capacity to provide informed consent to ECT and there is no less restrictive way for the patient to be treated
• an adult who is not a patient, where the person does not have capacity to provide informed consent to ECT and the person has an instructional directive consenting to ECT, or the person’s medical treatment decision maker has given informed consent to ECT, and there is no less restrictive way for the person to be treated
• a young patient, where:
  • the young patient has given informed consent in writing; or
  • the young patient does not have the capacity to provide informed consent to ECT and there is no less restrictive way for the young patient to be treated.
• a young person who is not a patient, where:
  • the young person has given informed consent in writing; or
  • the young patient does not have capacity to provide informed consent to ECT and the young person’s medical treatment decision maker has given informed consent in writing to ECT and there is no less restrictive way for the young patient to be treated.

If not satisfied of the relevant matters, the Mental Health Tribunal will refuse to authorise ECT.

In making an order authorising ECT, the Mental Health Tribunal must specify details of the course of treatment, being the number of treatments to be performed (which can be up to 12) and the period within which the treatments must be performed (which cannot be longer than 6 months).

There is no requirement that a course of electroconvulsive treatment be completed.

Urgent application to perform ECT

An authorised psychiatrist or psychiatrist may request an urgent hearing of an application for ECT if satisfied that the course of ECT is necessary as a matter of urgency to:

• save the life of the person for whom the application is made
• prevent serious damage to the health of the person
• prevent the person from suffering or continuing to suffer significant pain or distress.

The Mental Health Tribunal must list and complete a hearing of an urgent application as soon as practicable after receiving the request.

Once the Mental Health Tribunal has made a decision regarding an ECT application

As soon as practicable after the Mental Health Tribunal makes an order or refuses an application to make an order authorising a course of ECT, the Tribunal must notify the psychiatrist or authorised psychiatrist who made the application.

The Tribunal must also notify:

• the person in respect of whom the application was made
• the person’s carer, if the Tribunal is satisfied that the making of the order will directly affect the carer and the care relationship
• the person’s guardian, if they have one
• a parent, if the person is under the age of 16 years
• the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order
• if the person is a patient, the person’s nominated support person, if they have one
• if the person is not a patient, any medical treatment decision maker who gave informed consent to the ECT and the person’s support person if they have one.

The Tribunal must take reasonable steps to ensure each of these people who have been notified are given a copy of the order. The authorised psychiatrist who applied for the order must take reasonable steps to ensure that each of these people who have been notified are given a copy of the relevant statement of rights.

For more information on these terms, see Terms and definitions.

Beginning and end of a course of ECT

A course of ECT begins on the date it is authorised by the Mental Health Tribunal.

The course of ECT ends when any of the following occurs:

• all of the authorised treatments have been performed
• the date by which the course of treatment must be completed is reached
• the psychiatrist or authorised psychiatrist determines that ECT is no longer the least restrictive treatment available
• the person’s legal status changes – that is,
  • a person who was not a patient becomes a patient (that is a person is made subject to an order that authorises compulsory assessment or treatment); or
  • a person who was a patient ceases to be a patient
• a young person reaches 18 years of age
• a person who had an order made on the basis that they did not have capacity to consent to ECT regains capacity to give informed consent
• a medical treatment decision maker who provided consent to ECT withdraws that consent
• a new order authorising ECT is made for the person.

A psychiatrist or an authorised psychiatrist may apply to the Mental Health Tribunal for a further order authorising a course of ECT for a person during or after a course of ECT.

Reporting on the use of ECT

An authorised psychiatrist applying for and/or providing ECT for a person must give a written report to the Chief Psychiatrist in relation to any matter requested within any timeframes set by the Chief Psychiatrist.

Transitional arrangements

A course of ECT authorised before 1 September 2023 continues to apply as though the authorisation was made under the Mental Health and Wellbeing Act 2022.

The Mental Health and Wellbeing Act (the Act) provides the legal framework for the assessment of people who appear to have a mental illness and the treatment of those who are assessed as living with a mental illness or experiencing psychological distress.

The Act requires that voluntary assessment and treatment is preferred over compulsory approaches wherever possible.

This is supported by the objectives of the Act, the mental health and wellbeing principles, in particular the least restrictive principle, and the decision making principles for treatment and interventions.

The Act includes compulsory assessment criteria and compulsory treatment criteria that allows for the making of treatment orders that operate for a fixed duration and require timely oversight by an independent Mental Health Tribunal.

Processes are described in this chapter and illustrated in the compulsory assessment and treatment flow chart.

To receive this document in another format email mhwa@health.vic.gov.au.

A temporary treatment order authorises the provision of compulsory mental health treatment.

Processes are described in this chapter and illustrated in the temporary treatment orders flow chart.

To receive this document in another format email mhwa@health.vic.gov.au.

Purpose of a temporary treatment order

A temporary treatment order enables an authorised psychiatrist to provide compulsory treatment to a patient.

A temporary treatment order can either be a community temporary treatment order or an inpatient temporary treatment order.

If a community temporary treatment order is made the person is treated in the community.

If an inpatient temporary treatment order is made the person can be taken to and detained and treated in a designated mental health service.

How a temporary treatment order is made

Examination

An authorised psychiatrist may make a temporary treatment order for a person who is subject to an assessment order or a court assessment order if the authorised psychiatrist:

• has examined the person; and
• is satisfied that the compulsory treatment criteria apply to the person.

The person who makes a temporary treatment order for a person subject to an assessment order cannot be the same person who made that assessment order.

The examination must be in person unless this is not practicable in which case the examination may be done remotely.

The Chief Psychiatrist will issue guidelines to assist in determining whether or not it is practicable in the circumstances for an examination to be conducted in person. These guidelines will be published on the Department of Health website when finalised.

Before examining the person, the authorised psychiatrist must identify themselves, inform the person they will be examined under an assessment order and take reasonable steps to explain the purpose of the examination. There are requirements that must be followed when communicating under the Act.

Determining if the compulsory treatment criteria apply

In determining whether the compulsory treatment criteria apply to a person the authorised psychiatrist must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about treatment, and any beneficial alternative treatments, including:
  • views or preferences in the person’s advance statement of preferences if they have one; and
  • views or preferences expressed by the person’s nominated support person if they have one
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• the views of the person’s guardian, if they have one
• the views of any carer, if the authorised psychiatrist is satisfied that making a temporary treatment order will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

An authorised psychiatrist will have fulfilled this obligation if reasonable attempts are made to find out the views of those listed above, even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

The authorised psychiatrist may also have regard to any other relevant information, including information communicated to the authorised psychiatrist by any other person.

Before making a temporary treatment order the authorised psychiatrist must give proper consideration to the decision making principles for treatment and interventions.

Setting of temporary treatment order – community or inpatient

The authorised psychiatrist making the temporary treatment order must determine whether the order is to be:

• a community temporary treatment order – which means the person must be treated in the community; or
• an inpatient temporary treatment order – which means the person needs to be taken to a designated mental health service to be provided treatment.

An authorised psychiatrist may only make an inpatient temporary treatment order if satisfied that the person cannot be treated in the community.

Duration of a temporary treatment order

A temporary treatment order expires 28 days after it is made (beginning on and including the day the order was made), unless revoked or it expires because:

• the Mental Health Tribunal makes a treatment order for the person;
• the person is made subject to a court secure treatment order or a secure treatment order; or
• the person is detained in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

A variation of the setting of a temporary treatment order does not affect the duration of the order.

An authorised psychiatrist must immediately revoke a temporary treatment order if the compulsory treatment criteria no longer apply to the person.

Contents of Temporary treatment order

A temporary treatment order must state whether the order is a community temporary treatment order or an inpatient temporary treatment order and must include:

• the name of the person to be treated under the order
• the name, qualification and signature of the authorised psychiatrist making the order
• the time and date the person was examined
• the time and date the order was made
• whether the order is a community temporary treatment order or an inpatient temporary order
• the designated mental health service which is to be responsible for the person’s treatment
• the nature and effect of a temporary treatment order
• the duration of the order.

The MHWA 110 form should be used when making a Temporary Treatment Order.

Once a Temporary treatment order is made

If the order is an inpatient temporary treatment order

If the person is not already at a designated mental health service and an inpatient temporary treatment order is made, the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Informing the person that a temporary treatment order has been made

As soon as practicable after the order is made, the authorised psychiatrist must ensure all reasonable steps are taken to:

• inform the person that they are subject to a temporary treatment order and will receive treatment for their mental illness
• explain the purpose and effect of the order to the person
• give the person a copy of the temporary treatment order and a copy of the relevant statement of rights.

The requirements for communicating under the Act must be followed.

Notifying the Mental Health Tribunal that a temporary treatment order has been made

As soon as practicable after a temporary treatment order is made, the authorised psychiatrist who makes the order must notify the Mental Health Tribunal that an order has been made.

The Mental Health Tribunal must conduct a hearing before the order expires to determine whether to make a treatment order for the person.

Notifying the non-legal mental health advocacy service that a temporary treatment order has been made

An authorised psychiatrist who makes a temporary treatment order for a person must ensure the non-legal mental health advocacy service provider is notified. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issued by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Others to be informed that a Temporary treatment order has been made

As soon as practicable after making a temporary treatment order, the authorised psychiatrist must ensure all reasonable steps are taken to inform specified associated people that the order has been made and give these people a copy of the order and the relevant statement of rights.

The associated people to be informed about the making of a temporary treatment order are the person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the making of the order will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

For more information on these terms, see Terms and definitions.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Providing treatment during a Temporary treatment order

A person subject to a temporary treatment order is to be given treatment for their mental illness.

Compulsory mental health treatment can be given to a person on a temporary treatment order, however, voluntary treatment is preferred.

The informed consent of a person must be sought before treatment (or medical treatment) is given to a person, regardless of their legal status under the Act. This means that informed consent of the person subject to a temporary treatment order must be sought.

The Act sets out the circumstances in which an authorised psychiatrist may make a treatment decision for a person on a temporary treatment order who does not give informed consent to the proposed treatment or does not have capacity to give informed consent.

Variation of a temporary treatment order

Variation of setting - community or inpatient

An authorised psychiatrist may:

• vary a community temporary treatment order to an inpatient temporary treatment order; or
• vary an inpatient temporary treatment order to a community temporary treatment order.

A community temporary treatment order can only be varied to an inpatient temporary treatment order if the authorised psychiatrist is satisfied that the person cannot be treated in the community.

A variation of setting does not change the duration of the order.

If a community temporary treatment order is varied to an inpatient temporary treatment and the person is not already at a designated mental health service, the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Variation of responsible designated mental health service

An authorised psychiatrist may vary a temporary treatment order to specify that a different designated mental health service will be responsible for the person’s treatment if:

• the authorised psychiatrist is satisfied the variation is necessary for the person’s treatment; and
• an authorised psychiatrist for the designated mental health service that will become responsible for the person’s treatment approves the variation.

The Chief Psychiatrist may direct an authorised psychiatrist to vary an order to specify that a different designated mental health service will be responsible for the person’s treatment if the Chief Psychiatrist is satisfied the variation is necessary for the person to be treated.

If an inpatient temporary treatment order is varied to specify that a different designated mental health service will be responsible for the person’s treatment the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

A person has a right to apply to the Mental Health Tribunal for a review of a decision to vary a temporary treatment order to transfer responsibility for a person’s treatment to a different designated mental health service. The application must be made within 20 business days.

Requirements before varying a temporary treatment order

Before varying a temporary treatment order the authorised psychiatrist or Chief Psychiatrist (as relevant), must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about the proposed variation, including-
• views or preferences in the person’s advance statement of preferences if they have one; and
• views or preferences expressed by the person’s nominated support person if they have one
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• the views of the persons guardian, if they have one
• the views of any carer, if the authorised psychiatrist or chief psychiatrist is satisfied that the proposed variation will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

For more information on these terms, see Terms and definitions.

These obligations will be fulfilled if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Before making a decision to vary the temporary treatment order the authorised psychiatrist must give proper consideration to the decision making principles for treatment and interventions.

Information requirements for varied temporary treatment orders

Variation of setting - notification of Mental Health Tribunal and non-legal mental health advocacy service provider

As soon as practicable after the setting of a temporary treatment order is varied, the authorised psychiatrist must ensure:

• the Mental Health Tribunal is notified; and
• the non-legal mental health advocacy service provider is notified of the variation. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issued by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Informing the person and others of a variation of a temporary treatment order

As soon as practicable after a temporary treatment order is varied, the authorised psychiatrist must ensure all reasonable steps are taken to:

• inform the person that the temporary treatment order has been varied
• explain the purpose and effect of the variation to the person
• where the setting is changed, give the person a copy of the varied order and a copy of the relevant statement of rights; and
• where the relevant designated mental health service is changed, the authorised psychiatrist must give any documents relevant to the assessment or treatment of the person to the new designated mental health service.

The authorised psychiatrist must also notify associated people of the variation, as soon as practicable after the variation is made. When the setting of the order is changed, the associated people should also be provided with a copy of the varied order and the relevant statement of rights. These associated people are the person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Revocation or expiry of a temporary treatment order

Revocation of a temporary treatment order

An authorised psychiatrist must immediately revoke a temporary treatment order if the compulsory treatment criteria no longer apply to the person.

A person also has a right to apply, at any time, to the Mental Health Tribunal for revocation of a temporary treatment order.

The Mental Health Tribunal must conduct a hearing as soon as practicable. The Tribunal must either make a treatment order if the compulsory treatment criteria do apply to the person, or revoke the temporary treatment order if the criteria no longer apply to the person.

Expiry of a Temporary treatment order

A Temporary treatment order will expire:

• at the end of the 28 day period unless it is revoked earlier
• if the person is made subject to a treatment order
• if the person is made subject to a court secure treatment order or a secure treatment order; or
• if the person is detained in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Notifications that a temporary treatment order is revoked

If a temporary treatment order is revoked, the authorised psychiatrist must notify the Mental Health Tribunal, unless the Tribunal revoked the order. The authorised psychiatrist must ensure that reasonable steps are taken to inform the person that they are no longer subject to the temporary treatment order and explain the reason for the revocation and provide written notice of the revocation.

The authorised psychiatrist must also ensure that all reasonable steps are taken to notify the following people and provide them with a copy of the written notice of revocation:

• the person’s nominated support person, if they have one
• the person’s guardian, if they have one
• the person’s carer, if the authorised psychiatrist is satisfied that the revocation will directly affect the carer and the care relationship
• the person’s parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

If a temporary treatment order is revoked the authorised psychiatrist must ensure the non-legal mental health advocacy service provider is notified of the revocation.

The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issues by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Effect of detention in custody on temporary treatment order

A temporary treatment order has no effect while the person who is subject to the order is detained in custody. A person cannot receive compulsory mental health treatment while detained in custody.

Detained in custody means a person is held in:

• a prison
• a remand centre, youth justice centre or youth residential centre
• a police gaol; or
• immigration detention.

A period of detention in custody does not ‘pause’ the duration of the order. The order will expire at the time it would otherwise have expired had the person not been detained in custody.

Transitional arrangements

A temporary treatment order made under the Mental Health Act 2014 will continue to operate, as though it were a temporary treatment order made under the Mental Health and Wellbeing Act 2022, for the period specified in the order.

An assessment order is the first step in initiating compulsory mental health treatment.

Processes are described in this chapter and illustrated in the assessment orders flow chart.

To receive this document in another format email mhwa@health.vic.gov.au.

Purpose of an assessment order

An assessment order enables an authorised psychiatrist to examine the person without the person’s consent to determine whether they have mental illness and need compulsory mental health treatment.

An assessment order can either be a community assessment order or an inpatient assessment order.

If a community assessment order is made the person must be assessed in the community.

If an Inpatient assessment order is made the person must be taken to and detained in a designated mental health service for assessment.

How an assessment order is made

Examination

A registered medical practitioner or an authorised mental health practitioner may make an assessment order if they have examined the person within the previous 24 hours and are satisfied that the compulsory assessment criteria apply to the person.

Compulsory assessment criteria

The examination must be in person unless this is not practicable in which case the examination may be done remotely.

The Chief Psychiatrist will issue guidelines to assist in determining whether or not it is practicable in the circumstances for an examination to be conducted in person. These guidelines will be published on the Department of Health website when finalised.

Before examining the person, the registered medical practitioner or authorised mental health practitioner must identify themselves, inform the person that they will be examined and take reasonable steps to explain the purpose of the examination. There are requirements that must be followed when communicating under the Act.

An assessment order can only be made within 24 hours of the examination. If more than 24 hours have passed, another examination must be conducted before an assessment order can be made.

Determining if the compulsory assessment criteria apply

In determining whether the compulsory assessment criteria apply to a person the registered medical practitioner or authorised mental health practitioner:

• must consider information communicated by the person being examined; and
• may consider any other relevant information including information communicated by any other person.

Setting of an assessment order – community or inpatient

The practitioner making the assessment order must determine whether the order is to be:

• a community assessment order – which means the person must be assessed in the community; or
• an inpatient assessment order – which means the person needs to be taken to a designated mental health service to be assessed.

A registered medical practitioner or authorised mental health practitioner may only make an inpatient assessment order if the practitioner is satisfied that the assessment of the person cannot occur in the community.

Duration of an assessment order

An assessment order comes into force when the order is made and expires:

• in the case of a community assessment order, 24 hours after it is made; and
• in the case of an inpatient assessment order, on the earlier of:
  • 24 hours after the person is received at a designated mental health service; or
  • 72 hours after the order is made.

An authorised psychiatrist must assess a person subject to an assessment order as soon as practicable and before the order expires.

Extending an assessment order

If, after examining the person, the authorised psychiatrist is unable to determine whether the compulsory treatment criteria apply, the authorised psychiatrist may extend the duration of the assessment order for a period of up to 24 hours.

An assessment order may be extended twice before it finally expires.

Contents of an assessment order

An assessment order must state whether the order is a community assessment order or an inpatient assessment order and must include -

• the name of the person to be assessed
• the name, qualification and signature of the person making the order
• the time and date the person was examined
• the time and date the order was made
• whether the order is a community assessment order or an inpatient assessment order
• the designated mental health service which is to be responsible for assessing the person
• the nature and effect of an assessment order
• the duration of the order.

The MHWA 101 form should be used when making an Assessment Order.

Once an assessment order is made

Inpatient assessment order

If an inpatient assessment order is made, the registered medical practitioner or authorised mental health practitioner who makes the order must, as soon as practicable, arrange for the person to be transported to the responsible designated mental health service. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Informing the person an assessment order has been made

As soon as practicable after the order is made, the registered medical practitioner or authorised mental health practitioner who makes an Assessment order must ensure all reasonable steps are taken to:

• inform the person that they are subject to an Assessment order
• explain the purpose and effect of the Order to the person
• give the person a copy of the Order and a copy of the relevant statement of rights.

The requirements for communicating under the Act must be followed.

Notifying the authorised psychiatrist an assessment order has been made

As soon as practicable after an assessment order is made, the registered medical practitioner or authorised mental health practitioner who makes an assessment order must:

• notify the authorised psychiatrist of the responsible designated mental health service that the Assessment order is made
• give the authorised psychiatrist a copy of the assessment order.

Others to be informed an assessment order has been made

As soon as practicable after being notified that the assessment order has been made, the authorised psychiatrist must ensure all reasonable steps are taken to inform specified associated people that the assessment order has been made and give the people listed below a copy of the order and the statement of rights:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that assessing the person will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

For more information on these terms, see Terms and definitions.

Providing treatment during an assessment order

A person subject to an assessment order may only be given treatment for their apparent mental illness if:

• they give informed consent to the treatment (the Act includes specific requirements in relation to informed consent); or
• where the treatment is required as a matter of urgency to prevent serious deterioration in their mental or physical health or serious harm to the person or another person.

A registered medical practitioner employed or engaged by the responsible designated mental health service may authorise the giving of treatment to a person without their informed consent where treatment is urgently required in the above circumstances.

Indications of urgency include circumstances where the person is suffering significant distress or where their physical health or mental health is seriously deteriorating or where a delay in treatment would result in serious harm to the person.

Variation of an assessment order

Variation of setting

The setting of an assessment order can be varied from an inpatient assessment order to a community assessment order, or from a community assessment order to an inpatient order at any time before the person is examined by an authorised psychiatrist.

The variation can be made by a registered medical practitioner or an authorised mental health practitioner. The variation does not need to be made by the same registered medical practitioner or authorised mental health practitioner who made the assessment order.

Variation of an inpatient assessment order to a community assessment order

An inpatient assessment order that is varied to a community assessment order expires at the earlier of the following:

• if the assessment patient had been received at a designated mental health service before variation of the order, 24 hours after the patient was received at the designated mental health service; or
• 24 hours after the variation of the order.

Variation of a community assessment order to an inpatient assessment order

A variation from a community assessment order to an inpatient assessment order may only be made if the registered medical practitioner or authorised mental health practitioner is satisfied that the assessment of the person cannot occur in the community.

Where a community assessment order is varied to an inpatient assessment order, the practitioner who varies the order must, as soon as practicable, arrange for the person to be taken to the designated mental health service.

A community assessment order that is varied to an inpatient assessment order expires 24 hours after the variation is made.

Variation of responsible designated mental health service

At any time before a person is examined by an authorised psychiatrist, a registered medical practitioner or an authorised mental health practitioner may vary an assessment order to specify a different designated mental health service which is to be responsible for assessing the person.

If the varied order is an inpatient assessment order, the practitioner must arrange for the person to be transported to the responsible designated mental health service as soon as practicable.

Information requirements for varied assessment orders

As soon as practicable after the order is made, the registered medical practitioner or authorised mental health practitioner that varies an assessment order must ensure all reasonable steps are taken to:

• inform the person that the assessment order has been varied
• explain the purpose and effect of the variation to the person
• give the person a copy of the varied Order and a copy of the relevant statement of rights.

The requirements for communicating under the Act must be followed.

The registered medical practitioner or authorised mental health practitioner must also ensure the authorised psychiatrist of the responsible designated mental health service is notified of the variation and provided with a copy of the varied order.

The authorised psychiatrist is responsible for notifying associated people of a variation:

• as soon as practicable after the setting of an assessment order is varied; or
• as soon as practicable after a person is received at a designated mental health service after an order is varied to specify a different responsible designated mental health service.

The associated people should be provided with a copy of the varied order and the relevant statement of rights. These associated people are the person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

For more information on these terms, see Terms and definitions.

Assessment by the authorised psychiatrist

An authorised psychiatrist must examine a person subject to an assessment order, to determine if the compulsory treatment criteria apply to the person, as soon as practicable after:

• the assessment order is made, for a community assessment order; or
• the person is received at the designated mental health service, for an inpatient assessment order.

Before examining the person, the authorised psychiatrist must identify themselves, inform the person they will be examined under an order and take reasonable steps to explain the purpose of the examination. There are requirements that must be followed when communicating under the Act. If the person requests a copy of the order, the authorised psychiatrist must ensure they receive a copy.

Expiration or Revocation of an Assessment Order

Expiration of an Assessment order

An Inpatient assessment order expires:

• if a person is not received at a designated mental health service within 72 hours of the making of the Inpatient assessment order; or
• 24 hours after the person is received at the designated mental health service, unless the assessment order is extended by the authorised psychiatrist; or
• at the end of the relevant period of extension of the inpatient assessment order if the duration of the assessment order was extended by the authorised psychiatrist.

A Community assessment order expires:

• 24 hours after the assessment order has been made, unless the assessment order is extended by the authorised psychiatrist; and
• at the end of the relevant period of extension of the assessment order.

An assessment order also ends if, after assessing the person subject to the assessment order, the authorised psychiatrist makes a temporary treatment order.

Revocation of an assessment order

An authorised psychiatrist must immediately revoke an assessment order if, after assessing the person subject to the assessment order, the authorised psychiatrist is satisfied that the compulsory treatment criteria do not apply to the person.

As soon as practicable after the assessment order is revoked, the authorised psychiatrist must ensure that reasonable steps are taken to:

• inform the person that they are no longer subject to an assessment order
• explain to the person the reason for the revocation and effect of the revocation of the order
• give written notice of the revocation to the person who was subject to the assessment order. Such notice must include the name, qualification and signature of the authorised psychiatrist who revoked the order and the date and time the order was revoked.

The authorised psychiatrist must also notify the following people as soon as practicable that the order has been revoked and provide them with a copy of the notice of revocation:

• the person’s nominated support person, if they have one
• the person’s guardian, if they have one
• the person’s carer, if the authorised psychiatrist is satisfied that the revocation will directly affect the carer and the care relationship
• the person’s parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

For more information on these terms, see Terms and definitions.

Effect of detention in custody on Assessment Order

An assessment order has no effect while a person is detained in custody.

Detained in custody means a person is held in:

• a prison;
• a remand centre, youth justice centre or youth residential centre;
• a police gaol; or
• immigration detention.

A period of detention in custody does not ‘pause’ the duration of the order. The order will expire at the time it would otherwise have expired had the person not been detained in custody.

Transitional arrangements

An assessment order made under the Mental Health Act 2014 will continue to operate, as though it were an assessment order made under the Mental Health and Wellbeing Act 2022, for the period specified in the order.

A treatment order authorises the provision of compulsory mental health treatment.

Processes are described in this chapter and illustrated in the treatment orders flow chart.

To receive this document in another format email mhwa@health.vic.gov.au.

Purpose of a treatment order

A treatment order enables an authorised psychiatrist to provide compulsory treatment to a patient.

A treatment order can either be a community treatment order or an inpatient treatment order.

If a community treatment order is made the person is treated in the community.

If an inpatient treatment order is made the person can be taken to and detained and treated in a designated mental health service.

How a treatment order is made

The Mental Health Tribunal makes treatment orders. An authorised psychiatrist cannot make a treatment order for a person.

When a person is on a temporary treatment order

The Mental Health Tribunal must conduct a hearing before a temporary treatment order expires to determine whether to make a treatment order for the person.

The hearing will be automatically listed and does not require an application by the authorised psychiatrist.

When a person is subject to an existing treatment order

An authorised psychiatrist will need to make an application to the Mental Health Tribunal for another treatment order to be made for a patient who is subject to an existing treatment order if the authorised psychiatrist considers the order should be extended.

Examination

An authorised psychiatrist may apply to the Mental Health Tribunal for another treatment order if the authorised psychiatrist:

• has examined the person; and
• is satisfied that the compulsory treatment criteria apply to the person.

The examination must be in person unless this is not practicable in which case the examination may be done remotely. The Chief Psychiatrist will issue guidelines to assist in determining whether or not it is practicable in the circumstances for an examination to be conducted in person. These guidelines will be published on the Department of Health website when finalised.

Before examining the person, the authorised psychiatrist must identify themselves, inform the person that they will be examined and take reasonable steps to explain the purpose of the examination. If the patient requests a copy of the current treatment order, the authorised psychiatrist must ensure that the patient is given a copy of the order. There are requirements that must be followed when communicating under the Act.

Determining if the compulsory treatment criteria apply

When determining whether to apply for another treatment order for a person who is subject to an existing treatment order the authorised psychiatrist must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about treatment, and any beneficial alternative treatments, including
  • views or preferences in the person’s advance statement of preferences (if they have one); and
  • views or preferences expressed by the person’s nominated support person (if they have one);
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve;
• the views of the person’s guardian, if they have one;
• the views of any carer, if the authorised psychiatrist is satisfied that making a treatment order will directly affect the care relationship;
• the views of a parent of the person, if the person is under the age of 16 years; and
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

For more information on these terms, please see Terms and definitions.

The authorised psychiatrist may have regard to any other relevant information, including information communicated to the authorised psychiatrist by any other person.

An authorised psychiatrist will have fulfilled this obligation if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Before making a Treatment order, the authorised psychiatrist must give proper consideration to the decision-making principles for treatment and interventions.

Making an application to the Mental Health Tribunal

An application to the Mental Health Tribunal to make a treatment order for a person must be made at least 10 business days before the person’s current treatment order will expire.

The principal registrar of the Tribunal may accept an application made after this time (but before the order expires) if they are satisfied that it is reasonable in the circumstances to do so.

The Application must specify the date and time the authorised psychiatrist most recently examined the person.

The Mental Health Tribunal most conduct a hearing if a valid application is received.

The MHWA 113 form can be used when making an application to the Tribunal.

Mental Health Tribunal may make a treatment order

The Mental Health Tribunal must determine if the compulsory treatment criteria apply to a person. In determining that the criteria apply the Mental Health Tribunal must be satisfied that –

• if the treatment order is made the person will receive treatment. This means that services must be available to enable the person’s treatment; and
• there is no less restrictive means reasonably available to enable the person to receive the immediate treatment, including whether the person can receive treatment on a voluntary basis.

In deciding whether or not a treatment order should be made the Mental Health Tribunal must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about treatment, and any beneficial alternative treatments, including-
  • views or preferences in the person’s advance statement of preferences (if they have one); and
  • views or preferences expressed by the person’s nominated support person (if they have one);
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve;
• the views of the person’s guardian, if they have one;
• the views of any carer, if the Mental Health Tribunal is satisfied that making a treatment order will directly affect the care relationship;
• the views of a parent of the person, if the person is under the age of 16 years; and
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

Setting of treatment order – community or inpatient

The Mental Health Tribunal must determine whether the treatment order is to be:

• a community treatment order – which means the person must be treated in the community; or
• an inpatient treatment order – which means the person needs to be taken to a designated mental health service to be provided treatment.

The Mental Health Tribunal may only make an inpatient treatment order if satisfied that the person cannot be treated in the community.

Duration of a treatment order

The Mental Health Tribunal must determine the duration of a treatment order.

The duration cannot be longer than:

• 6 months, if the person is 18 years old or older; and
• 3 months if the person is under 18 years of age.

A variation of the setting of a treatment order does not affect the duration of the order.

An authorised psychiatrist must immediately revoke a treatment order if the compulsory treatment criteria no longer apply to the person who is subject to the order.

Contents of treatment order

A treatment order must state whether the order is a community treatment order or an inpatient treatment order and must include:

• the name of the person to be treated under the order
• the date the order was made
• whether the order is a community treatment order or an impatient treatment order
• the designated mental health service which is to be responsible for the person’s treatment
• the nature and effect of a treatment order
• the duration of the order.

Once a treatment order is made

If the order is an inpatient treatment order

If the person is not already at a designated mental health service and an inpatient treatment order is made, an authorised psychiatrist from the responsible designated mental health service must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Informing the person that a treatment order has been made

As soon as practicable after the order is made, an authorised psychiatrist from the responsible designated mental health service must ensure all reasonable steps are taken to:

• inform the person that they are subject to a treatment order and will receive treatment for their mental illness;
• explain the purpose and effect of the order to the person;
• give the person a copy of the treatment order and a copy of the relevant statement of rights.

The requirements for communicating under the Act must be followed.

Notifying the non-legal mental health advocacy service that a treatment order has been made

As soon as practicable after the order is made, an authorised psychiatrist from the responsible designated mental health service must ensure the non-legal mental health advocacy service provider is notified. The notification to the non-legal mental health advocacy service provider must be made in accordance with the Protocols issues by the Chief Officer. These protocols will be published on the Department of Health website when finalised.

Others to be informed that a treatment order has been made

As soon as practicable after the order is made, an authorised psychiatrist from the responsible designated mental health service must ensure all reasonable steps are taken to inform specified associated people that the order has been made and give these people a copy of the order and the relevant statement of rights.

The associated people to be informed about the making of a treatment order are the person’s -

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the making of the order will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years;

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Providing treatment during a treatment order

A person subject to a treatment order is to be given treatment for their mental illness.

Compulsory mental health treatment can be given to a person on a treatment order, however, voluntary treatment is preferred.

The informed consent of a person must be sought before treatment (or medical treatment) is given to a person, regardless of their legal status under the Act. This means that informed consent of the person subject to a treatment order must be sought.

The Act sets out the circumstances in which an authorised psychiatrist may make a treatment decision for a person on a Treatment order who does not give informed consent to the proposed treatment or does not have capacity to give informed consent.

Variation of a treatment order

Variation of setting - community or inpatient

An authorised psychiatrist may:

• vary a community treatment order to an inpatient treatment order; or
• vary an inpatient treatment order to a community treatment order.

A community treatment order can only be varied to an inpatient treatment order if the authorised psychiatrist is satisfied that the person cannot be treated in the community.

A variation of setting does not change the duration of the order.

If a community treatment order is varied to an inpatient treatment and the person is not already at a designated mental health service, the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Mental Health Tribunal hearing - treatment order varied from community to inpatient

The Mental Health Tribunal must automatically conduct a hearing within 28 days (beginning on the day the order was varied) of the variation of a community treatment order to an inpatient treatment order to determine whether to make a treatment order or revoke the treatment order.

A hearing does not need to be held if the authorised psychiatrist varies the inpatient treatment order back to community treatment order before the hearing.

This hearing will be automatically listed and does not require an application to be made by the authorised psychiatrist.

The Mental Health Tribunal will:

• confirm the inpatient treatment order if satisfied the compulsory treatment criteria still apply to the person and the person cannot be treated in the community; or
• vary the order to a community order if satisfied that the compulsory treatment criteria still apply to the person and the person can be treated in the community; or
• revoke the treatment order if not satisfied that the treatment criteria still apply to the person.

Variation of responsible designated mental health service

An authorised psychiatrist may vary a treatment order to specify that a different designated mental health service will be responsible for the person’s treatment if:

• the authorised psychiatrist is satisfied the variation is necessary for the person’s treatment; and
• an authorised psychiatrist for the designated mental health service that will become responsible for the person’s treatment approves the variation.

The Chief Psychiatrist may direct an authorised psychiatrist to vary an order to specify that a different designated mental health service will be responsible for the person’s treatment if the Chief Psychiatrist is satisfied the variation is necessary to for the person to be treated.

If an inpatient treatment order is varied to specify that a different designated mental health service will be responsible for the person’s treatment the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

A person has a right to apply to the Mental Health Tribunal for a review of a decision to vary a treatment order to transfer responsibility for a person’s treatment to a different designated mental health service. The application must be made within 20 business days.

Requirements before varying a treatment order

Before varying a treatment order the authorised psychiatrist or Chief Psychiatrist (as relevant), must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about the proposed variation, including:
  • views or preferences in the person’s advance statement of preferences and
  • views or preferences expressed by the person’s nominated support person
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• the views of the persons guardian, if they have one
• the views of any carer, if the authorised psychiatrist or chief psychiatrist is satisfied that the proposed variation will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

These obligations will be fulfilled if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Before making a decision to vary the treatment order the authorised psychiatrist must give proper consideration to the decision making principles for treatment and interventions.

Information requirements for varied treatment orders

Variation of setting - notification of Mental Health Tribunal and non-legal mental health advocacy service provider

As soon as practicable after the setting of a treatment order is varied, the authorised psychiatrist must ensure:

• the Mental Health Tribunal is notified; and
• the non-legal mental health advocacy service provider is notified of the variation. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issues by the Chief Officer. These protocols will be published on the Department of Health website.

Informing the person and others of a variation of a treatment order

As soon as practicable after a treatment order is varied, the authorised psychiatrist must ensure all reasonable steps are taken to:

• inform the person that the treatment order has been varied;
• explain the purpose and effect of the variation to the person; and
• where the setting is changed, give the person a copy of the varied order and a copy of the relevant statement of rights; and
• where the relevant designated mental health service is changed, the authorised psychiatrist must give any documents relevant to the assessment or treatment of the person to the new designated mental health service.

The authorised psychiatrist must also notify associated people of the variation, as soon as practicable after the variation is made. When the setting of the order is changed, the associated people should also be provided with a copy of the varied order and the relevant statement of rights. These associated people are the person’s -

• nominated support person, if they have one;
• guardian, if they have one;
• carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship; and
• a parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Revocation or expiry of a Treatment order

Revocation of a treatment order

An authorised psychiatrist must immediately revoke a treatment order if the compulsory treatment criteria no longer apply to the person.

A person also has a right to apply, at any time, to the Mental Health Tribunal for revocation of a treatment order.

The Mental Health Tribunal must conduct a hearing as soon as practicable. The Tribunal must either make a treatment order if the compulsory treatment criteria do apply to the person, or revoke the treatment order if the criteria do not apply to the person.

Expiry of a treatment order

A treatment order will end:

• at the end of the specified duration unless it is revoked earlier
• if the person is made subject to a new treatment order
• if the person is made subject to a court secure treatment order or a secure treatment order
• if the person is detained in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Notifications that a treatment order is revoked

• If a treatment order is revoked, the authorised psychiatrist must notify the Mental Health Tribunal (unless the Tribunal revoked the order) and ensure that reasonable steps are taken to inform the person that they are no longer subject to the treatment order and, explain the reason for the revocation and provide written notice of the revocation.

The authorised psychiatrist must also ensure that all reasonable steps are taken to notify the following people and provide them with a copy of the written notice of revocation:

• the person’s nominated support person, if they have one
• the person’s guardian, if they have one
• the person’s carer, if the authorised psychiatrist is satisfied that the revocation will directly affect the carer and the care relationship
• the person’s parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

If a treatment order is revoked the authorised psychiatrist must ensure the non-legal mental health advocacy service provider is notified of the revocation. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issues by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Effect of detention in custody on treatment order

A treatment order has no effect while the person subject to the treatment order is detained in custody. A person cannot receive compulsory mental health treatment while detained in custody.

Detained in custody means a person is held in:

• a prison
• a remand centre, youth justice centre or youth residential centre
• a police gaol
• immigration detention.

A period of detention in custody does not ‘pause’ the duration of the order. The order will expire at the time it would otherwise have expired had the person not been detained in custody.

Transitional arrangements

A treatment order made under the Mental Health Act 2014 will continue to operate, as though it were a Treatment order made under the Mental Health and Wellbeing Act 2022, for the period specified in the order.

However, in circumstances where a community treatment order is varied to an inpatient treatment order and the order has a period of longer than 6 months, the Mental Health Tribunal will vary the period as the Tribunal considers appropriate so that it is not more than 6 months.

Information sharing principles

The Mental Health and Wellbeing Act 2022 (the Act) includes information sharing principles to give mental health and wellbeing providers clarity of the purpose and expectations around information sharing.

The Act requires entities and people making decisions, performing functions or exercising powers relating to the disclosure, use or collection of health or personal information to give proper consideration to the following information sharing principles:

• Disclosure, collection and use of information principle: The disclosure, use or collection of personal or health information about a person receiving mental health and wellbeing services should be directed at:
  • enhancing a person’s ability to access, understand and self-manage their information
  • improving the person’s experience of the mental health and wellbeing system
  • supporting the person to transition between services or levels of care
  • supporting the provision of safe, integrated, high-quality treatment, care and support
  • where appropriate, supporting families, carers and supporters to fulfil their role
• Dignity of person paramount principle: Information is to be recorded accurately and respectfully
• Aboriginal and Torres Strait Islander information principle: Information of Aboriginal and Torres Strait Islander people is to be treated in a manner that promotes self-determination and is culturally safe, acknowledging connections to family, kin and community
• Accessibility of information principle: Information is to be provided to people in an accessible format that acknowledges the needs of that person, as reasonably practicable, having regard to their age, disability, neurodiversity, culture, language, communication, religion, ethnicity, sex, gender identity and sexual orientation
• Accuracy of information principle: Information relating to a person receiving mental health and wellbeing services that is recorded or shared is to be accurate, relevant and up to date.

Information sharing with consumer consent

The Act adopts a consent-driven approach to information sharing. As a general rule, consumer consent is required for the sharing of health and personal information, and consumers are able to withdraw this consent at any time. There are, however, a number of exceptions to this position which are set out below.

Information sharing with ‘specified service providers’ is supported where it is reasonably necessary to assist in the referral of the person between a mental health and wellbeing service provider and a specified service provider, or to ensure integrated services are provided to the person. ‘Specified services’ are state-funded providers of alcohol and drug treatment services and state-funded community housing services. This is intended to support improved access to integrated alcohol and other drug treatment services, and to housing for consumers.

The Act also allows for regulations to be made to include other types of service providers in the definition of ‘specified service providers.’ No such regulations are currently planned.

A mental health and wellbeing service provider must inform a consumer that they may disclose their information with specified service providers who provides services to the consumer unless the consumer elects that the information is not disclosed. If the person elects to not have their personal information disclosed, then the mental health and wellbeing service provider must keep a written record of that election.

Obligation to share information with consent at key points of care

The Act includes a positive duty for providers to share some or all of a person's health information to family, a carer or a supporter, with consumer consent, following the consumer's admission or discharge from an inpatient service.

When can consent to the sharing of information be overridden?

A mental health and wellbeing service provider is not required to disclose the health information of a consumer to family, a carer or a supporter despite consent being given for that disclosure if:

• the disclosure poses a threat to the life or health of any person
• the disclosure could unreasonably impact on the privacy of other persons
• the disclosure is unlawful
• the disclosure is inconsistent with a requirement or authorisation by or under law
• the disclosure may prejudice an investigation of unlawful activity
• the disclosure may prejudice a law enforcement function by or on behalf of law enforcement agency
• the disclosure is likely to cause damage to the security of Australia in the course of a law enforcement agency performing a function.

Information sharing without consent

The Act continues to permit the sharing of information without consent in specified circumstances.

Electronic Health Information System

The EHIS is known as CMI/ODS which is the Victorian public mental health client information management system managed and maintained by the Department of Health.

A person who is employed or engaged by a mental health and wellbeing service provider or a prescribed emergency service provider may enter a person's health information into the EHIS (CMI/ODS) without consumer consent. The EHIS (CMI/ODS) may also be accessed by providers for the purposes of providing mental health and wellbeing services, including integrated care, to the consumer to whom that information relates without obtaining consent from the consumer.

Circumstances where health information can be disclosed without consent

The Act lists circumstances where the health information of a person can be disclosed without the consent of the person. These circumstances include:

• Health information may be disclosed if the disclosure is reasonably necessary for the mental health and wellbeing service provider to perform functions or exercise powers under the Act or any other Act. or if the disclosure is permitted by certain Health Privacy Principles (HPP), listed below.
  • HPP 2.1, which permits the disclosure of information for the primary purpose for which the information was collected.
  • HPP 2.2 (a), which permits disclosure of information for a secondary purpose if the secondary purpose is directly related to the primary purpose and the consumer would reasonably expect the service to disclose the information for the secondary purpose. A ‘related’ purpose must be directly connected or associated with the primary purpose of collection.
  • HPP 2.5, which permits the disclosure of information if a consumer is suspected to be or is dead, is suspected to be missing or is missing or is involved in an accident or other misadventure and is incapable of consenting to the disclosure. Disclosure in these circumstances should only be to the extent reasonably necessary to identify the consumer or to ascertain the identity and location of an immediate family member or other relative of the person to:
    • enable a member of the police force, a coroner or other prescribed organisation to contact the immediate family member or other relative for compassionate reasons; or
    • assist in the identification of the person.
• Disclosure is also permitted in accordance with HPP 2.2 (f) (funding, management etc. of the health services). HPP 2.2(g) (research in the public interest) and HPP 2.2(k) (establishing a legal defence).
• Health information can also be disclosed if the disclosure is:
  • Made in accordance with any guidelines issued by the Health Complaints Commissioner under the Health Records Act 2001 (HR Act); and where the disclosure is reasonably necessary to lessen or prevent a serious threat to a person's life, health, safety or welfare, or a serious threat to public health, public safety or public welfare.
  • Reasonably required by another mental health and wellbeing service provider or a health service provider to provide health services to the person.
  • Permitted by an Act other than the HR Act.
  • Made in general terms to family, a carer or supporter of the person and the disclosure is not contrary to the views and preferences expressed by the person that the health information must not be disclosed to family, a carer or supporter. This disclosure is subject to section 31 of the Act which limits the disclosure of health or personal information of a person if there may be a risk of family violence or other serious harm to that person by disclosure of that information. This limitation applies regardless of whether the person has consented to the disclosure of their personal or health information.
  • Made to a psychiatrist giving a second psychiatric opinion. The disclosure may include providing access to a consumer’s clinical records or discussing a consumer’s treatment with the psychiatrist giving the second psychiatric opinion.
  • Made to a parent of the person and the person is under 16 years of age or the Secretary of the Department of Families Fairness and Housing with parental responsibility of the child under a relevant child protection order.
  • Made to a guardian of the person and the disclosure is reasonably required in connection with the performance of a duty or the exercise of a power by the guardian.
  • Made to a support person (within the meaning of the Medical Treatment Planning and Decisions Act 2016) of the person to whom the health information relates.

Information sharing with specific organisation is also permitted without consent, for example:

• Information sharing with Ambulance Service Victoria is supported where it is for the purposes of the provision of an emergency service or performing a function under the Act.

The information sharing provisions within the Act do not override information sharing enabled in other Acts, including those which allow for information sharing without consent to assess and manage risk, for example under Part 5A of the Family Violence Protection Act 2008. These continue in accordance with current legislative arrangements.

Offences for misuse of information

The Act protects the privacy of people accessing mental health and wellbeing services. It is an offence to:

• knowingly access the EHIS (CMI/ODS) or use or disclose health information or personal information on the system unless the person is authorised to do so under the Act.
• knowingly access the system or use or disclose health information or personal information on the system other than in accordance with that authorisation.

These offences are in addition to the obligations of non-disclosure of personal information imposed under other laws, such as the Health Records Act 2001, the Privacy and Data Protection Act 2014 (for services provided in the public health system), and the Privacy Act 1988 (Cth).

Failure to comply with the Information Sharing Principles also allows a consumer to complain to the Mental Health and Wellbeing Commission.

Health information statements

The Act introduces a new process to enable a person to make a statement on information held about them by a mental health and wellbeing service provider, in circumstances where the provider has refused to amend or correct information under the Freedom of Information Act 1982 or Health Privacy Principles.

A provider who refuses to amend or correct information must provide the reasons in writing for that refusal and inform the person that they may make a health information statement within 12 months of receiving the notice of refusal.

Mental health and wellbeing providers may use the template provided to communicate a refusal to amend or correct health information.

Any health information statement received from a consumer must be included on the person's health information record.

Consumers may use the template provided to communicate a health information statement.

The department has developed the following forms to support the implementation of the Mental Health and Wellbeing Act 2022 (the Act). .

Services can download and print forms from the website or order hard copies of selected forms from Allanby Press Printers.

The MHWA125 notice of death form is available on the Chief Psychiatrist’s website.

Assessment Order forms

Temporary Treatment Order and Treatment Order forms

Operational forms (leave, transfer etc)

Treatment, applications and consent

Restrictive interventions

Guidelines regarding the use of chemical restraint are published by the Office of the Chief Psychiatrist.

Security and forensic patients

Cross border

Admissions, registration and separations

Advance statement of preferences

Forms for making or revoking an advance statement of preferences are on the advance statement of preferences page.

Nominated support persons

Forms for nominating a nominated support person or revoking a nomination can be found on the nominated support persons page.

Access to archived mental health information

Access to archived mental health information held by the Department of Health can be requested through Freedom of Information or via email at foi@health.vic.gov.au

Secretary of the Department of Health and Chief Officer for Mental Health and Wellbeing

The Act establishes a new role of Chief Officer for Mental Health and Wellbeing (the Chief Officer). This is a senior position within the Department of Health.

The role aims to elevate the status of mental health and wellbeing within the department and strengthen leadership of the mental health and wellbeing system.

Under the Act, both the Secretary of the Department of Health (the Secretary) and the Chief Officer have critical functions as the stewards and managers of the mental health and wellbeing system.

The Secretary has broader responsibility as system manager and steward of the health system overall, including mental health and wellbeing.

The roles of the Secretary and the Chief Officer include:

• developing mental health and wellbeing strategy, policy, guidelines and codes of practice
• planning, developing and commissioning mental health and wellbeing services that respond to Victoria’s diverse communities
• monitoring the performance, quality and safety of mental health and wellbeing service providers
• developing and supporting the mental health and wellbeing workforce
• supporting the new Regional Mental Health and Wellbeing Boards to perform their functions
• setting and revising targets for reducing compulsory treatment, seclusion and restraint.

Mental Health and Wellbeing Commission

The Act establishes Victoria's Mental Health and Wellbeing Commission (the Commission).

The Commission is an independent statutory authority. It has a key role in holding government to account for system-wide performance, quality and safety.

The Commission has designated roles for Commissioners with lived or living experience of mental illness or psychological distress and with experience as a family member, carer or supporter.

The Commission receives, manages and resolves complaints about mental health services provided to consumers.

Read more about the Mental Health and Wellbeing Commission.

Chief Psychiatrist

The Act establishes the Chief Psychiatrist as an independent statutory officer with powers and responsibilities to uphold quality and safety in Victoria’s mental health and wellbeing system.

Read more about the Chief Psychiatrist’s role and responsibilities.

Mental Health Tribunal

The Act establishes the Mental Health Tribunal (the Tribunal) as an independent statutory tribunal.

The Tribunal is an essential safeguard under the Mental Health and Wellbeing Act 2022 to protect the rights and dignity of people with mental illness.

The main function of the Tribunal is to determine if the criteria for compulsory mental health treatment as set out in the Act apply to a person. The Tribunal may make a Treatment Order for a person if all the criteria in the legislation apply to that person.

Read more about the Mental Health Tribunal.

Community Visitors

Community Visitors play an important quality and safety oversight role for people receiving residential mental health services at prescribed premises.

Community Visitors are trained volunteers who have a legislative right to visit these premises, assist people receiving services and check on the quality of services and care provided.

Read more about Community Visitors.

Victorian Collaborative Centre for Mental Health and Wellbeing

The Victorian Collaborative Centre for Mental Health and Wellbeing aims to bring together people with lived experience, researchers and mental health service providers to:

· conduct research for the benefit of consumers, carers, families, and the community

· share knowledge of advances in mental health treatment, care and support

· support the mental health workforce

· provide treatment, care and support to adults and older adults.

The Centre is governed by an independent board which includes consumer and carer representation.

Read more about the Victorian Collaborative Centre for Mental Health and Wellbeing.

Youth Mental Health and Wellbeing Victoria

Youth Mental Health and Wellbeing Victoria (YMHWV) is a new statutory entity established by the Act to address the emerging evidence of the youth mental health crisis.

YMHWV will provide system leadership and strategic advice, giving agency to the voices of young people with lived experience of mental illness and psychological distress

We have developed a range of resources to support understanding and awareness of the Mental Health and Wellbeing Act 2022. These resources have been developed with sector stakeholders.

If you are a mental health clinician seeking clinical advice or guidance, please contact the Office of the Chief Psychiatrist.

Helpful resources published on this website include:

• Mental Health and Wellbeing Act 2022 handbook
• Comparison of key provisions in Mental Health and Wellbeing Act 2022 and the Mental Health Act 2014
• Quick guide video series responding to questions about key changes in the Act (available at the bottom of the page)

Posters

A selection of posters is available to download and print. They are available in two themes and are suitable for community and workforce settings.

Fact sheets and downloads

Working together to achieve better experiences for all

Achieving the highest possible standard of mental health and wellbeing for Victorians

Information for the community

Resources to support community understanding of the new Act are available on the Information for the community page.

Translated resources are available on the Mental Health and Wellbeing Act 2022 in your language page.