Terms and definitions

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.