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Compulsory treatment: inpatient assessment and treatment

Information to support legal help staff to speak about the Mental Health and wellbeing Act 2022.

About the Mental Health and Wellbeing Act

The Mental Health and Wellbeing Act 2022 (Vic) (the Act), is the key legislation covering mental health treatment in Victoria. It replaced the Mental Health Act 2014 (Vic), and was a key recommendation of the Royal Commission into Victoria’s Mental Health System .

The purpose of this Act is to lay the foundation for the vision of the Royal Commission into Victoria's Mental Health System to transform the mental health and wellbeing system and to support the delivery of person-centred services that are responsive to the needs and preferences of Victorians.

The Act seeks to:

  • promote good mental health and wellbeing for all Victorians
  • reset the legislative foundations for the mental health and wellbeing system
  • support the delivery of services that are responsive to the needs and preferences of Victorians
  • put the views, preferences and values of people living with mental illness or psychological distress, families, carers and supporters at the forefront of service design and delivery.

The Act also establishes new roles and entities, as recommended by the Royal Commission.

The new Act continues to provide for the assessment and treatment of mental illness within the public health system, including for people to be treated compulsorily if required criteria are met. The Act also provides safeguards for compulsory treatment, such as the Chief Psychiatrist, the Mental Health Tribunal and the Mental Health and Wellbeing Commissioner [FB2] (replacing the Mental Health Complaints Commissioner).

The Act regulates designated mental health services, which are hospitals and public health services under the Health Services Act 1988 (Vic) and the Victorian Institute of Forensic Mental Health (Forensicare).

Focus of the Act

The Mental Health and Wellbeing Act came into effect on 1 September 2023. Whilst it authorises compulsory treatment in certain circumstances, the Act is intended to promote conditions in which people can:

  • experience good mental health and wellbeing and
  • recover from mental illness and psychological distress.

The Act seeks 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 include a broad and accessible range of voluntary treatment options to:

  • enable a reduction in the use of compulsory assessment and treatment and
  • enable a reduction in the use of seclusion and restraint (with the aim of eliminating its use within 10 years).

The Act also seeks to protect, support and strengthen the rights of people living with mental illness. These include rights to:

  • make advance statement of preferences
  • communicate privately with people outside a mental health service, including lawyers and non-legal advocates specifically, and have visitors
  • nominate support people, who can receive information and support decision-making
  • request second psychiatric opinions
  • be given a statement of rights when being assessed or having an order made about their treatment for mental illness.

Key elements of the Act

Mental health and wellbeing principles and rights

A core part of the framework is the inclusion of mental health and wellbeing principles in Part 1.5 of the Act to guide mental health and wellbeing service providers to support the dignity and autonomy of people living with mental illness or psychological distress.

Mental health and wellbeing service providers must make all reasonable efforts to comply with the mental health and wellbeing principles when providing mental and wellbeing health services and must give proper consideration to these principles when making decisions under the Act (s 29). The principles include the provision of mental health services in the least restrictive way possible, promoting the rights, dignity of a person and participation and support in decision-making.

  • Dignity and autonomy principle: s 16 - The rights, dignity and autonomy of a person living with mental illness or psychological distress is to be promoted and protected and the person is to be supported to exercise those rights.
  • Diversity of care principle: s 17 - A person living with mental illness or psychological distress is to be provided with access to a diverse mix of care and support services.
  • Least restrictive principle: s 18 - 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.
  • Supported decision making principle: s 19 - Supported decision making practices are to be promoted and the views and preferences of the person receiving mental health and wellbeing services are to be given priority.
  • Family and carers principle: s 20 - 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: s 21 - 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: s 22 - 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.
  • Dignity of risk principle: s 23 - 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.
  • Wellbeing of young people principle: s 24 - 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.
  • Diversity principle: s 25 - 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 gender identity; sexual orientation; sex; ethnicity; language; race; religion, faith or spirituality; class; socioeconomic status; age; disability; neurodiversity; culture; residency status and geographic disadvantage).
  • Gender safety principle: s 26 - People receiving mental health and wellbeing services may have specific safety needs or concerns based on their gender.
  • Cultural safety principle: s 27 - Mental health and wellbeing services are to be culturally safe and responsive to people of all racial, ethnic, faith-based and cultural backgrounds.
  • Wellbeing of dependents principle: 28 - The needs, wellbeing and safety of children, young people and other dependents of people receiving mental health and wellbeing services are to be protected.

Psychiatrists, doctors and staff at mental health services, as well as the Mental Health Tribunal, must consider these principles when making decisions under the Act.

The degree to which this section may be relied upon as a basis for any legal action is yet to be tested. The Mental Health and Wellbeing Commission [FB3] can receive and deal with complaints about a mental health service provider’s failure to make all reasonable efforts to comply with the mental health and wellbeing principles.

Alongside the mental health and wellbeing principles are specific rights, such as to private communication, free non-legal advocacy, advance statement of preferences, having nominated support persons, second psychiatric opinions and information about rights and treatment, through a statement of rights.

People receiving mental health services [FB4] have rights to privacy and confidentiality, but this requires careful balancing with the increased recognition of the role of support people (such as family members and carers) to support decision-making. Part 17.1 deals with disclosure of health information.

Presumption of capacity

Section 85 states clearly that a person is presumed to have capacity to give informed consent. A person has capacity to give informed consent if they are able to:

  • understand the information they are given for the purpose of deciding whether or not to consent and
  • remember that information and
  • use and weigh that information in deciding whether or not to consent and
  • communicate the decision by speech, gestures or any other means (s 87).

The Act sets out principles to guide the determination of capacity in s 87(2).

A person on a treatment order can still be given treatment against their wishes, even if they have capacity, if certain criteria are met (s 89).

Section 86 of the Act, states that a person gives informed consent to treatment or medical treatment under the Act if they:

  • have the 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 by any other person and
  • have not withdrawn consent or indicated any intention to withdraw consent.

Section 86(2) further defines when a person has been given adequate information to make an informed decision.

For more information see Rights of people receiving treatment for mental illness .

Mental Health Tribunal

The Mental Health Tribunal is an independent tribunal established by the Act. The Tribunal conducts hearings to decide whether a person meets the criteria for compulsory mental health treatment under the Act.

Mental Health and Wellbeing Commission

The Mental Health and Wellbeing Commission (the Commission) is an independent body established under the Act. The role of the Commission is to safeguard people’s rights under the Act, resolve complaints about Victorian public mental health services, and recommend improvements.

The Commission replaced the Mental Health Complaints Commissioner on 1 September 2023. The new Commission has more extensive powers under the Act and is able to investigate a matter without a complaint being made, and conduct broad inquiries into any matter relating to its objectives or functions.

Updated