Mental Health and Wellbeing Act 2022

294 Publication of clinical review report 249

Division 5—Directions 249

295 Directions to a specific clinical mental health service provider or clinical mental health service providers generally 249

Division 6—Powers of search and entry 251

296 Definition 251

297 Powers of entry 251

298 Power to give written direction to persons to produce documents or answer questions 253

Division 7—Confidentiality obligations 254

299 Definitions 254

300 Confidentiality obligations applying in respect of information from clinical review 254

301 Confidentiality of documents 255

302 Use or disclosure of information permitted to prevent serious harm 256

303 Disapplication of Freedom of Information Act 1982 256

304 Application of Health Records Act 2001 257

Part 6.4—Regional mental health and wellbeing boards 258

Division 1—Establishment of regional mental health and wellbeing boards 258

305 Establishment of regional mental health and wellbeing boards 258

306 Terms of reference 259

307 Functions of a regional mental health and wellbeing board 259

308 Consideration of mental health and wellbeing principles 261

309 Advice to Minister 261

310 Powers of a regional mental health and wellbeing board 262

311 Facilities and resources 262

Division 2—Members of regional mental health and wellbeing board 262

312 Appointment of members 262

313 Terms and conditions of appointment of a member 264

314 Vacancy and resignation 265

315 Removal from office 265

Division 3—Community advisory committees 266

316 Regional mental health and wellbeing boards may establish community advisory committees 266

317 Procedure of community advisory committees 266

Part 6.5—Panels 267

Division 1—Regional multiagency panels 267

318 Appointment of regional multiagency panels 267

319 Membership of regional multiagency panel 267

320 Functions of a regional multiagency panel 268

321 Consideration of mental health and wellbeing principles 269

322 Facilities and resources 269

323 Procedure of regional multiagency panel 269

Division 2—Statewide panel 269

324 Appointment of statewide panel 269

325 Function of statewide panel 270

326 Consideration of mental health and wellbeing principles 270

327 Procedure for statewide panel 270

Part 6.5A—Mental Health Workforce Safety and Wellbeing Committee 271

327A Mental Health Workforce Safety and Wellbeing Committee 271

327B Objectives of the Mental Health Workforce Safety and Wellbeing Committee 272

Part 6.6—Authorised psychiatrists 273

328 Appointment of authorised psychiatrist 273

329 Delegation 273

Chapter 7—Mental Health Tribunal 276

Part 7.1—Establishment of the Mental Health Tribunal 276

330 Establishment of the Mental Health Tribunal 276

331 Official seal of Mental Health Tribunal 276

332 Functions of the Mental Health Tribunal 276

333 Consideration of mental health and wellbeing principles 278

334 General powers of the Mental Health Tribunal 278

335 Protection of Tribunal members, persons and witnesses 278

Part 7.2—Membership of the Mental Health Tribunal 280

336 Members of the Mental Health Tribunal 280

337 President 280

338 Deputy President 281

339 Senior Tribunal members and ordinary Tribunal members 282

340 Legal members 283

341 Psychiatrist members 283

342 Registered medical practitioner members 283

343 Community members 283

344 Acting President or Acting Deputy President 284

345 Remuneration and allowances 284

346 Public Administration Act 2004 does not apply to Tribunal members 284

347 Resignation of Tribunal member 285

348 Suspension from office 285

349 Investigation of member 285

350 Vacation and removal from office 286

Part 7.3—Administration 288

351 Employment of staff 288

352 Functions of principal registrar 288

353 Functions of registrars 288

354 Delegation by President and Deputy President 288

355 Secrecy 289

356 Register of proceedings 290

357 Annual report of the Mental Health Tribunal 291

Part 7.4—Divisions of the Mental Health Tribunal 293

358 Divisions of the Mental Health Tribunal 293

359 Constitution of the Mental Health Tribunal 293

360 When can the Mental Health Tribunal be constituted by a single member? 294

361 Presiding member 295

Part 7.5—Procedure of the Mental Health Tribunal 296

362 General procedure of the Mental Health Tribunal 296

363 Who are the parties to a proceeding? 296

364 Joinder of parties 297

365 Appearance and representation at hearing 297

366 Interpreters 297

367 Form and content of applications to the Mental Health Tribunal 298

368 Principal registrar may reject certain applications 298

369 Review by President 299

370 Withdrawal of applications and striking out of proceeding 300

371 Notice of hearing 300

372 Multiple matters or proceedings in respect of one person may be held concurrently 302

373 Access to documents 302

374 Adjournment of certain hearings only in exceptional circumstances 304

375 Hearings to be closed to the public 304

376 Details of person not to be published without consent of President and subject person 305

377 Determination of proceeding 305

378 Questions of law 306

379 Referral of question of law to Supreme Court 306

380 Requesting a statement of reasons 307

381 Correction of order or statement of reasons 308

382 Validity of proceedings 308

383 Review by VCAT 309

384 Use of experts 310

385 Witness summons 310

386 Failure to comply with witness summons 311

387 False or misleading information 311

388 Contempt of the Mental Health Tribunal 311

Part 7.6—Rules Committee 313

389 Establishment of Rules Committee 313

390 Functions of the Rules Committee 313

391 Power to make rules and issue practice notes 313

392 Membership of the Rules Committee 313

393 Meeting procedure 314

394 Validity of decisions of Rules Committee 314

Chapter 8—Community visitors and the Community Visitors Mental Health Board 315

Part 8.1—Appointment of community visitors 315

395 Appointment of community visitors 315

396 Terms and conditions of appointment of a community visitor 315

397 Vacancy and resignation 316

398 Removal from office 317

Part 8.2—Functions and powers of community visitors 318

399 Functions of a community visitor 318

400 Consideration of mental health and wellbeing principles 319

401 Visits to prescribed premises by community visitors 319

402 Request to see a community visitor 321

403 Reasonable assistance to be given to community visitors 321

Part 8.3—Community Visitors Mental Health Board 322

404 Establishment of the Community Visitors Mental Health Board 322

405 Membership of the Community Visitors Mental Health Board 322

406 Functions of the Community Visitors Mental Health Board 322

407 Community Visitors Mental Health Board may refer a matter 323

Part 8.4—Reports and confidentiality 324

408 Reports by community visitors and the Community Visitors Mental Health Board 324

409 Annual report of Community Visitors Mental Health Board 324

410 Confidentiality 325

Chapter 9—Mental Health and Wellbeing Commission 327

Part 9.1—Mental Health and Wellbeing Commission 327

Division 1—Mental Health and Wellbeing Commission 327

411 Establishment of the Mental Health and Wellbeing Commission 327

412 Common seal 327

413 Objectives of the Mental Health and Wellbeing Commission 328

414 Consideration of mental health and wellbeing principles 329

415 Functions of the Mental Health and Wellbeing Commission 329

416 Powers of the Mental Health and Wellbeing Commission 335

417 Delegation 335

418 Staff of the Mental Health and Wellbeing Commission 336

419 Chief Executive Officer of the Mental Health and Wellbeing Commission 336

419A Meetings of the Mental Health and Wellbeing Commission 337

419B General procedure 337

419C Validity of acts or decisions 337

Division 2—Mental Health and Wellbeing Commissioners 338

420 Appointment of Mental Health and Wellbeing Commissioners 338

421 Terms and conditions of appointment 340

422 Vacancy and resignation 340

423 Removal from office 341

424 Acting appointment 342

425 Protection from liability 343

426 Functions and powers of a Mental Health and Wellbeing Commissioner 343

Division 3—Reports 344

427 Annual report 344

428 Reports to the Parliament 346

429 Content of reports tabled in Parliament 347

Part 9.2—Complaints 348

Division 1—Making a complaint 348

430 Guiding principles of the Mental Health and Wellbeing Commission in relation to complaints 348

431 Complaint by consumer 348

432 Complaint by person (other than consumer) 349

433 Complaint by carer, family member or supporter 350

434 When can a complaint be made? 350

435 How is a complaint made? 351

436 Mental Health and Wellbeing Commission must provide reasonable assistance to a person making or confirming a complaint 352

437 Record of complaint 352

438 Preconditions to handling a complaint made on behalf of or in relation to a consumer 352

439 Preconditions to handling a complaint made by carers, family members or supporters 353

440 Preliminary options for responding to complaint—information 354

441 Preliminary options for responding to complaint—early resolution options 355

442 Complaints referred to the Mental Health and Wellbeing Commission 355

443 Notifying entities that Commission will deal with referred complaints 357

444 Notification by consumer who does not wish to be party to a complaint 358

445 Withdrawal of complaint 358

Division 2—Procedure when a complaint is made to the Mental Health and Wellbeing Commission 359

446 Decision whether or not to deal with complaint 359

447 Grounds for not dealing with a complaint 359

448 Mental Health and Wellbeing Commission may refer complaints with or without complainant's consent 361

449 Complaint to which National Law may also apply 362

450 Notification of Mental Health and Wellbeing Commission's decision whether or not to deal with a complaint 363

451 Decision on how the Mental Health and Wellbeing Commission will deal with a complaint 364

452 Notification of complaint resolution process 365

453 Complaint resolution agreements 366

454 Mental Health and Wellbeing Commission may divide or concurrently deal with complaints 366

455 Participation of mental health and wellbeing service provider in complaint resolution process 368

456 Parties' withdrawal of agreement to complaint resolution process 368

457 Mental Health and Wellbeing Commission may cease complaint resolution process 368

458 Mental health and wellbeing service provider may be required to respond 369

459 Mental Health and Wellbeing Commission's power to extend time limit 369

Division 3—Conciliation 370

460 Conciliation 370

461 Party may be represented at conciliation 370

462 Mental health and wellbeing service provider may be required to produce documents in conciliation 371

463 Confidentiality of conciliation process 372

464 Completion of conciliation 373

Division 4—Complaint handling standards and procedures for receiving, managing and resolving complaints 373

465 Mental Health and Wellbeing Commission must prepare complaint handling standards 373

466 Mental Health and Wellbeing Commission must review complaint handling standards 374

467 Amendment or revocation of complaint handling standards 375

468 Date on which Order making or revoking complaint handling standards takes effect 375

469 Mental health and wellbeing service provider must establish procedures for receiving, managing and resolving complaints 376

Division 5—Deferral of notification 376

470 Deferral of notification by the Mental Health and Wellbeing Commission 376

471 Deferral of notification at the request of the National Board 377

472 Deferral of notification at the request of the Disability Services Commissioner 379

473 Deferral of notification at the request of the Health Complaints Commissioner 380

474 Deferral of notification at the request of the Victorian Disability Worker Commissioner 382

Division 6—Judicial Proceedings Reports Act 1958 385

474A Disclosure of information in the performance of functions not prevented by sections 3 and 4(1A) of Judicial Proceedings Reports Act 1958 385

474B Disclosure of information in the performance of functions not prevented by orders under Part 3 of Judicial Proceedings Reports Act 1958 385

Part 9.3—Undertakings and compliance notices 386

475 Undertakings and compliance notices while dealing with a complaint or during an investigation 386

Part 9.4—Investigations by the Mental Health and Wellbeing Commission 388

Division 1—Investigations 388

476 Investigation of a complaint by the Mental Health and Wellbeing Commission 388

477 Referred investigations 389

478 Own initiative investigations 389

479 Mental Health and Wellbeing Commission must not conduct investigation while conciliation is on foot 389

480 Notice of investigation 389

481 Investigation report 390

482 Persons to whom an investigation report must be given 391

483 Response by mental health and wellbeing service provider 393

Division 2—Follow up investigations 394

484 Power of Mental Health and Wellbeing Commission to conduct a follow up investigation 394

485 Notice of follow up investigation 394

486 Commencement of follow up investigation 395

487 Follow up investigation report 396

488 Persons to whom follow up investigation report to be given 396

489 Response by mental health and wellbeing service provider 399

Division 3—Conduct of investigations, authorised investigators and related powers 400

490 Conduct of investigations 400

491 Investigation requirements if there is no hearing 401

492 Investigation requirements if there is a hearing 401

493 Authorised investigator 402

494 Identification of authorised investigator 402

495 Authorised investigator must produce identification 402

496 Powers of entry to the premises of a mental health and wellbeing service provider 403

Division 4—Investigation notices, investigation hearings and powers related to investigation hearings 406

497 Power to compel production of documents and things or attendance of witnesses—investigation notice 406

498 Offence to fail to comply with investigation notice 407

499 Variation of investigation notice 407

500 Power to take evidence on oath or affirmation in investigation hearing 408

501 Powers in relation to documents and things produced during investigation hearing or under investigation notice 408

Part 9.5—Compliance notices 410

502 Compliance notice 410

503 Application for review—compliance notice 411

504 Offence not to comply with compliance notice 411

Part 9.6—Inquiries 412

505 Power of the Mental Health and Wellbeing Commission to conduct inquiry 412

506 Conduct of inquiry 412

507 Inquiry report 413

Part 9.7—Protections and legal representation 414

508 Compellability of a Mental Health and Wellbeing Commissioner or member of staff 414

509 Protection of participants in an investigation 414

510 Protection for persons who make a complaint 414

511 Privilege against self-incrimination 415

512 Legal professional privilege and client legal privilege 415

513 Offence to threaten etc. complainant 415

514 Offence to refuse to employ, dismiss or subject a person to detrimental action 415

515 Offence to make false statements 416

516 Legal representation 416

Part 9.8—Confidentiality, information collection and information sharing 418

Division 1—Disclosure of information 418

517 Non-disclosure of information—investigations and complaint data reviews 418

518 Non-disclosure of information—complaint resolution processes 420

519 Non-disclosure of information given in conciliation 421

520 Non-disclosure of identifying information 422

521 Mental Health and Wellbeing Commission may require information to be provided by mental health and wellbeing service provider 423

522 Mental Health and Wellbeing Commission may give information to other bodies or jurisdictions 424

523 Mental Health and Wellbeing Commission is authorised to receive information under the Health Practitioner Regulation National Law 425

Division 2—Reasonable assistance and information collection 425

524 Requirement to provide reasonable assistance to the Mental Health and Wellbeing Commission 425

525 Mental Health and Wellbeing Commission may collect information 426

526 Mental Health and Wellbeing Commission may collect data and information from mental health and wellbeing service providers and data sharing bodies 427

527 Information sharing agreements 428

Part 9.9—Complaint data review 430

528 Power to conduct a complaint data review 430

529 Conduct of a complaint data review 430

530 Complaint data review report 431

531 Persons to whom complaint data review report to be given 431

532 Response by mental health and wellbeing service provider 432

Chapter 10—Security patients 433

Part 10.1—Preliminary 433

533 Construction of references 433

Part 10.2—Secure treatment order 434

534 What is a secure treatment order? 434

535 Making a secure treatment order 434

536 Notification of receipt of security patient subject to a secure treatment order 435

537 Application to revoke secure treatment order 436

538 Mental Health Tribunal hearing in relation to secure treatment order 437

539 Discharge of person subject to a secure treatment order 438

Part 10.3—Court secure treatment orders 439

540 Taking person subject to court secure treatment order from prison and transporting to designated mental health service 439

541 Notification of receipt of security patient subject to a court secure treatment order 440

542 Application to Mental Health Tribunal in relation to security patient subject to court secure treatment order 441

543 Mental Health Tribunal hearing in relation to court secure treatment order 442

544 Discharge of person subject to a court secure treatment order 442

Part 10.4—Leave of absence 444

545 Grant of leave of absence 444

546 Revocation of leave of absence 446

547 Notification requirements for leave of absence 446

547A Authorised psychiatrist may arrange for security patient who is absent without leave to be transported to a designated mental health service 447

548 Application to Mental Health Tribunal for review of decision not to grant leave of absence 447

Part 10.5—Monitored leave 449

549 Monitored leave application and grant 449

550 Monitored leave conditions, duration and variation 450

551 Matters to take into account for monitored leave 450

552 Applicant profiles and leave plans for monitored leave 451

553 Revocation of monitored leave 453

554 Notification requirements for monitored leave 453

Part 10.6—Transporting security patients to another designated mental health service 455

555 Authorised psychiatrist may direct security patient to be transported to another designated mental health service 455

556 Chief psychiatrist may direct security patient to be transported to another designated mental health service 456

557 Role of authorised psychiatrist in transporting security patient to another designated mental health service 456

558 Application to Mental Health Tribunal for review of direction to transport security patient to another designated mental health service 458

Part 10.7—General security patient matters 460

559 Cessation of security patient status 460

560 Security conditions 460

561 Notification and directions following discharge of security patient subject to court secure treatment order or secure treatment order 461

562 Custody of security patients 462

563 Warrant to arrest security patient absent without leave who leaves Victoria 463

Part 10.8—Interstate security patients 464

564 Definitions for this Part 464

565 Warrant to arrest interstate security patient who absconds to Victoria 464

566 Orders that Magistrates' Court may make in respect of interstate security patients 466

567 Translated sentence for interstate security patient 466

568 Matters relating to translated sentences 467

Chapter 11—Forensic patients 469

569 Definitions for this Chapter 469

570 Notification when forensic patient received other than under section 571, 572, 573 or 574 470

571 Authorised psychiatrist may direct forensic patient be transported to another designated mental health service 471

572 Chief psychiatrist may direct forensic patient to be transported to another designated mental health service 472

573 Role of authorised psychiatrist in transferring forensic patient 473

574 Application to Forensic Leave Panel for review of decision to transport forensic patient to another designated mental health service 474

575 Security conditions 476

576 Leave of absence for forensic patient 477

576A Authorised psychiatrist may arrange for forensic patient who is absent without leave to be transported to a designated mental health service 477

Chapter 12—Intensive monitored supervision 478

577 What is an intensive monitored supervision order? 478

578 Intensive monitored supervision criteria 478

579 Examination before application for an intensive monitored supervision order 479

580 Information which must be provided with an application for an intensive monitored supervision order 480

581 Application to Mental Health Tribunal for intensive monitored supervision order 481

582 Mental Health Tribunal powers in respect of applications under this Chapter 482

583 Intensive monitored supervision order 484

584 Notice of making of order 485

585 Facilities and supplies to be provided to patient subject to intensive monitored supervision order 486

586 Intensive monitored supervision clinical committee 487

587 Monitoring of patient subject to intensive monitored supervision order 488

588 Intensive monitored supervision must end if patient no longer poses unacceptable risk 488

589 Application for revocation of intensive monitored supervision order 490

590 Review of use of intensive monitored supervision 491

591 Report on use of intensive monitored supervision to be given to chief psychiatrist 491

592 Immunity 492

Chapter 13—Interstate application of mental health provisions 493

Part 13.1—General 493

593 Corresponding laws and orders 493

594 Ministerial agreements 493

595 Victorian officers may exercise powers under corresponding laws 493

596 Interstate officers may perform functions or exercise powers in Victoria 494

Part 13.2—Assessment under Victorian orders interstate and corresponding orders in Victoria 495

597 Assessment of person from Victoria at interstate mental health facility 495

598 Assessment of interstate person in Victoria 495

Part 13.3—Interstate transfers 496

599 Transfer out of Victoria of responsibility for treatment—with person's consent 496

600 Interstate transfer of person—with person's consent 497

601 Transfer out of Victoria of responsibility for treatment (interstate transfer of treatment order)—without person's consent 498

602 Interstate transfer of person—without person's consent 500

603 Information to be given to transferring patient 503

604 Other entities to be notified of making of transfer order 503

606 Transfer of a person to Victoria 504

Part 13.4—Interstate application of Victorian orders 506

607 Interstate application of Victorian orders 506

Part 13.5—Persons absent without leave who are interstate 507

608 Persons absent without leave from interstate facilities 507

609 Persons absent without leave from designated mental health service 508

Chapter 14—Victorian Institute of Forensic Mental Health 509

Part 14.1—Preliminary 509

610 Victorian Institute of Forensic Mental Health 509

611 Trading name 509

612 Institute represents the Crown 510

613 Functions of the Institute 510

614 Powers of the Institute 511

615 Consideration of mental health and wellbeing principles 512

Part 14.2—Institute Board 513

616 Institute Board 513

617 Functions of Institute Board 513

618 Constitution of Institute Board 515

619 Appointment of directors 516

620 Terms and conditions of appointment of directors 516

621 Resignation and removal from office 517

622 Protection from liability 517

623 Validity of acts or decisions 518

624 Procedure of Institute Board 518

625 Guidelines of Minister 518

626 Appointment of delegate to Institute Board 518

627 Functions of delegate 520

628 Obligations of Institute Board to delegate 520

Part 14.3—General 521

629 Chief executive officer 521

630 Other employees 523

631 Minister may issue directions to Institute 523

632 Health Secretary may issue directions to Institute 523

633 Strategic plan 525

634 Statement of priorities 525

635 Institute Board to give notice of significant events 527

Part 14.4—Duty of candour 528

636 Definitions 528

637 Duty of candour 528

638 Apology not admission of liability 529

639 Non-compliance with duty of candour 530

Chapter 15—Victorian Collaborative Centre for Mental Health and Wellbeing 531

Part 15.1—Victorian Collaborative Centre for Mental Health and Wellbeing 531

Division 1—Establishment, functions and powers 531

640 Establishment 531

641 Official seal 531

642 Centre represents the Crown 532

643 Functions of the Centre 532

644 Powers of the Centre 533

645 Consideration of mental health and wellbeing principles 533

646 Centre to enter into agreements with designated mental health service and academic institution 533

Division 2—Centre Board 534

647 Centre Board 534

648 Functions of the Centre Board 536

649 Remuneration 536

650 Terms of office 537

651 Resignation 537

652 Removal from office 537

653 Chairperson 538

654 Acting chairperson 538

655 Meetings of the Centre Board 539

656 Establishment of committees 540

657 Guidelines 540

658 Delegation 541

Division 3—Director and staff 541

659 Director 541

660 Acting Director 542

661 Functions and powers of the Director 543

662 Delegation 544

663 Staff 544

Division 4—Directions, guidelines, statements of priorities and strategic plans 544

664 Minister may issue directions 544

665 Minister may issue guidelines 544

666 Statement of priorities 545

667 Strategic plan 546

Division 5—Reports 547

668 Annual report 547

669 Reports to the Minister and the Health Secretary 548

670 Reports to the Minister 548

Division 6—Information collection 549

671 Centre may collect information 549

Part 15.2—Review of operation 550

672 Review of operation of Centre's governance model 550

Chapter 16—Youth Mental Health and Wellbeing Victoria 551

Part 16.1—Youth Mental Health and Wellbeing Victoria 551

Division 1—Establishment, functions and powers 551

673 Establishment 551

674 Official seal 551

675 Youth Mental Health and Wellbeing Victoria represents the Crown 552

676 Functions of Youth Mental Health and Wellbeing Victoria 552

677 Powers of Youth Mental Health and Wellbeing Victoria 553

678 Consideration of mental health and wellbeing principles 555

Division 2—The Youth Mental Health and Wellbeing Board 556

679 Youth Mental Health and Wellbeing Board 556

680 Constitution and appointment of Youth Mental Health and Wellbeing Board 556

681 Functions of the Youth Mental Health and Wellbeing Board 558

682 Remuneration 562

683 Terms of office 562

684 Resignation 563

685 Removal from office 563

686 Delegation 563

687 Validity of acts or decisions 564

688 Chairperson 564

689 Procedure of the Youth Mental Health and Wellbeing Board 564

690 Establishment of committees 565

691 Guidelines 566

692 Staff 566

Division 3—Delegates 567

693 Appointment of delegates 567

694 Term of appointment 568

695 Resignation and revocation of appointment 569

696 Functions of delegate 569

697 Obligations of the Youth Mental Health and Wellbeing Board to a delegate 569

Part 16.2—Directions, guidelines, statements of priorities, strategic plans and service agreements 571

698 Minister may issue directions 571

699 Strategic plan 571

700 Statement of priorities 572

701 Notice to Minister and Health Secretary of matters of public concern or risk 574

702 Health Secretary may issue directions to Youth Mental Health and Wellbeing Victoria 574

703 Service agreements 576

Part 16.3—Declared operators providing youth mental health and wellbeing services 578

Division 1—Declared operators 578

704 Declared operators 578

705 Entities that are designated mental health services as a result of declaration under section 704 579

706 Functions of a declared operator under a service agreement with Youth Mental Health and Wellbeing Victoria 579

707 Statement of priorities with declared operators 580

Division 2—Suspension of services or appointment of administrator 582

708 Powers of Minister 582

709 Suspension of admission of patients 583

710 Appointment of administrator 584

711 Administrator may recommend termination of service agreement 586

712 Application for review by VCAT 586

713 Displacement of other law—appointment of administrator provisions 587

Part 16.4—General 588

714 Youth Mental Health and Wellbeing Victoria may collect information 588

715 Disclosure of information 589

716 Mental health and wellbeing service provider may be audited 589

717 Powers of auditors 590

718 Confidentiality requirements 592

719 Annual report 592

Chapter 17—General 593

Part 17.1—Disclosure of health information 593

Division 1—Information sharing principles 593

720 Information sharing principles 593

721 Entity to give proper consideration to information sharing principles 593

722 Disclosure, collection and use of information principle 593

723 Dignity of person paramount principle 594

724 Aboriginal and Torres Strait Islander information principle 594

725 Accessibility of information principle 594

726 Accuracy of information principle 595

Division 2—Electronic health information system 595

727 Electronic health information system 595

728 Information from electronic health information system 598

Division 3—Disclosure of health information 599

729 Disclosure of health information with consent of person 599

730 Permitted disclosure of health information without consent of person 600

731 Disclosure at key points of care 604

732 Mental health and wellbeing service provider may refuse to disclose despite consent 605

Division 4—Information sharing between mental health and wellbeing service providers and specified service providers 606

733 Collection, use and disclosure of personal or health information 606

734 Health information to be shared with emergency service providers 607

Division 5—Offences 608

735 Offence to use or disclose electronic health information system information without authorisation 608

736 Offence to use electronic health information system in a manner unauthorised 608

737 Offence to damage, destroy or remove electronic health information system information without authorisation 609

738 Destroying or damaging information held by mental health and wellbeing service providers 609

Part 17.2—Health information statements 611

739 Statement following health information refusal 611

740 Health information statement 611

Part 17.3—Notification of reportable deaths 613

741 Chief psychiatrist to be notified of reportable deaths 613

742 Notification of death of security patient or forensic patient 613

Part 17.4—Mental health and wellbeing surcharge 615

743 Mental health and wellbeing surcharge—appropriation of Consolidated Fund 615

Part 17.5—Miscellaneous provisions 616

Division 1—General 616

744 Power to commence a proceeding 616

745 Payment for examination 616

746 Offence to give false or misleading information 617

747 Destroying or damaging records 617

748 Privilege against self-incrimination 618

749 Validity of order if there is an error 618

750 Defect in appointment or delegation 618

751 Conflict of interest 619

752 Service of documents 619

753 Immunity—Part 17.1 620

Division 2—Codes of Practice 620

754 Purpose of Codes of Practice 620

755 Making of Codes of Practice 620

756 Commencement and availability of Codes of Practice 621

757 Codes of Practice may apply, adopt or incorporate 622

Division 3—Review of this Act 622

758 Review of this Act 622

Division 4—Regulations 623

759 Regulations 623

760 Fees 625

Chapter 18—Repeal, savings and transitional provisions 627

Part 18.1—Repeals 627

761 Repeal of Mental Health Act 2014 and Victorian Collaborative Centre for Mental Health and Wellbeing Act 2021 627

Part 18.2—Savings and transitional provisions—enactment of this Act 628

762 Application of Interpretation of Legislation Act 1984 628

763 Mental Health Tribunal 628

764 Rules Committee 628

765 Chief psychiatrist and authorised officers 629

766 Reportable deaths 629

767 Victorian Collaborative Centre for Mental Health and Wellbeing 629

768 Community visitors 631

769 Right to communicate 632

770 Advance statements 632

771 Nominated persons 632

772 Medical treatment 632

773 Second psychiatric opinions 632

774 Electroconvulsive treatment 633

775 Neurosurgery for mental illness 633

776 Seclusion and bodily restraint 634

777 Victorian Institute of Forensic Mental Health 634

778 Electronic health information system 635

779 Assessment orders 635

780 Court assessment orders 635

781 Temporary treatment orders 636

782 Treatment orders 636

Part 18.4—Transitional provisions—Entities Legislation Amendment (Consolidation and Other Matters) Act 2026 637

788 Directors of the Victorian Collaborative Centre for Mental Health and Wellbeing 637

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Endnotes 639

1 General information 639

2 Table of Amendments 640

3 Explanatory details 641

Version No. 006

Mental Health and Wellbeing Act 2022

No. 39 of 2022

Version incorporating amendments as at

Preamble

The Parliament recognises the importance of the people of Victoria achieving the highest attainable standard of mental health and wellbeing.

The Parliament intends that this Act 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 Parliament recognises the dedication, perseverance and important work of the mental health and wellbeing workforce as the mental health and wellbeing system develops. The Parliament also recognises people with lived and living experiences of mental illness and psychological distress and their commitment to working in partnership to achieve the vision of the Royal Commission.

The Parliament of Victoria therefore enacts:

Chapter 1—Preliminary

Part 1.1—Purposes and commencement

1 Purposes

The main purposes of this Act are—

(a) to restate, with amendments, the law relating to the treatment of persons living with mental illness or experiencing psychological distress; and

(b) to reform the system for the provision of mental health and wellbeing services; and

(c) to improve the administration of the system for mental health and wellbeing services; and

(d) to establish the Mental Health Tribunal; and

(e) to establish the Mental Health and Wellbeing Commission; and

(f) to establish the Victorian Institute of Forensic Mental Health; and

(g) to establish the Victorian Collaborative Centre for Mental Health and Wellbeing; and

(h) to establish Youth Mental Health and Wellbeing Victoria; and

(i) to repeal the Mental Health Act 2014 and the Victorian Collaborative Centre for Mental Health and Wellbeing Act 2021; and

(j) to consequentially amend other Acts.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 September 2023, it comes into operation on that day.

Part 1.2—Interpretation

3 Definitions

(1) In this Act—

acceptance form, in relation to a nominated support person, means the form signed by the person under section 63;

acting chairperson means, in relation to the Centre Board, the acting chairperson appointed under section 654;

acting Director means, in relation to the Centre, an acting Director appointed under section 660;

Adult Parole Board means the Adult Parole Board established by section 61 of the Corrections Act 1986;

advance statement of preferences means a statement of a kind referred to in section 57;

Ambulance Service—Victoria has the same meaning as in the Ambulance Services Act 1986;

appropriate supports has the meaning given by section 6;

assessment change means a change of assessment under a community court assessment order in accordance with section 170(1) or an inpatient court assessment order in accordance with section 170(2);

assessment order means an order made under section 144;

assessment patient means a person who is subject to an assessment order;

authorised investigator means a person authorised by the Mental Health and Wellbeing Commission under section 493;

authorised mental health practitioner means—

(a) a person who is employed or engaged by a designated mental health service as a—

(i) registered psychologist; or

(ii) registered nurse; or

(iii) social worker; or

(iv) registered occupational therapist; or

(b) a member of a prescribed class of person;

authorised officer means a person appointed by the chief psychiatrist under section 275;

authorised person means—

(a) a police officer; or

(b) a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986; or

(c) a protective services officer; or

(d) a registered medical practitioner employed or engaged by a designated mental health service; or

(e) an authorised mental health practitioner; or

(f) a member of a prescribed class of person;

authorised psychiatrist means a person appointed by the governing body of a designated mental health service under section 328;

bodily restraint means physical restraint, or mechanical restraint, of a person;

capacity to give informed consent has the meaning given by section 87;

carer has the same meaning as in section 3 of the Carers Recognition Act 2012 but does not include a parent if the person to whom care is provided is under the age of 16 years;

Centre means the Victorian Collaborative Centre for Mental Health and Wellbeing established by section 640;

Centre Board means the Board of the Centre established under section 647;

Chair of the Mental Health and Wellbeing Commission means the Chair of the Mental Health and Wellbeing Commission appointed under section 420;

chairperson, in relation to the Centre Board, means the chairperson appointed under section 653;

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;

Chief Officer means the Chief Officer for Mental Health and Wellbeing employed under section 260;

chief psychiatrist means the psychiatrist employed as the chief psychiatrist under section 265;

clinical mental health service provider means—

(b) a mental health and wellbeing service provider that provides mental health and wellbeing services in a custodial setting; or

(c) any other prescribed entity or prescribed class of entity;

clinical review report means a report prepared by the chief psychiatrist under section 288;

Code of Practice means a Code of Practice under Division 2 of Part 17.5;

community advisory committee means a community advisory committee established by a regional mental health and wellbeing board under section 316;

community assessment order means an assessment order referred to in section 145(1)(a);

community court assessment order has the meaning given by section 90(2) of the Sentencing Act 1991;

community temporary treatment order means a temporary treatment order referred to in section 181(1)(a);

community treatment order means a treatment order referred to in section 194(1)(a);

community visitor means a community visitor appointed under section 395;

Community Visitors Mental Health Board means the Community Visitors Mental Health Board established by section 404;

complainant means a person who makes a complaint;

complaint means a complaint made to the Mental Health and Wellbeing Commission under Part 9.2;

complaint data review means a review conducted under section 528;

complaint data review report means a report prepared under section 530;

complaint handling standards means the standards made under section 465;

complaint resolution process means a process referred to in section 451(1)(a) that the Mental Health and Wellbeing Commission may use to resolve a complaint;

compliance notice means a compliance notice served under section 502;

compulsory assessment criteria means the criteria set out in section 142;

compulsory treatment criteria means the criteria set out in section 143;

conciliation means a conciliation under Division 3 of Part 9.2;

consumer means a person who—

(a) has received mental health and wellbeing services from a mental health and wellbeing service provider; or

(b) is receiving mental health and wellbeing services from a mental health and wellbeing service provider; or

(c) was assessed by an authorised psychiatrist and was not provided with treatment; or

(d) sought or is seeking mental health and wellbeing services from a mental health and wellbeing service provider and was not or is not provided with those services;

corresponding law means—

(a) in Chapter 13, a law that is declared to be a corresponding law for the purposes of that Chapter by an Order under section 593; or

(b) in Chapter 17, the law of another State or a Territory corresponding, or substantially corresponding, to this Act;

corresponding order, in Chapter 13, means an order that is declared to be a corresponding order for the purposes of that Chapter by an Order under section 593;

court assessment order has the same meaning as in section 3(1) of the Sentencing Act 1991;

court assessment patient means a person who is subject to a court assessment order;

court secure treatment order means an order within the meaning of section 94A of the Sentencing Act 1991;

custodial setting means a place where a person is held—

(a) in a prison within the meaning of the Corrections Act 1986; or

(b) in a remand centre, youth residential centre or youth justice centre; or

(c) in a police gaol within the meaning of the Corrections Act 1986; or

(d) in a prescribed location;

decision making principles for treatment and interventions means the principles set out in Part 3.1;

declared operator means an entity declared to be a declared operator under section 704;

Department means the Department of Health;

Deputy President means the Deputy President of the Mental Health Tribunal appointed under section 338;

S. 3(1) def. of designated mental health service amended by No. 20/2023 s. 3(1).

designated mental health service means—

(a) a prescribed public hospital within the meaning of section 3(1) of the Health Services Act 1988; or

(b) a prescribed public health service within the meaning of section 3(1) of the Health Services Act 1988; or

(c) a prescribed denominational hospital within the meaning of section 3(1) of the Health Services Act 1988; or

(d) a prescribed privately-operated hospital within the meaning of section 3(1) of the Health Services Act 1988; or

(e) a prescribed private hospital within the meaning of section 3(1) of the Health Services Act 1988 that is registered as a health service establishment under Part 4 of that Act; or

(f) the Institute; or

(h) a service temporarily declared to be a designated mental health service under section 257; or

(i) a declared operator;

designated place has the same meaning as in the Victoria Police Act 2013;

device includes belt, screen, bed rails, tray table and furniture;

DFFH Secretary means the Secretary to the Department of Families, Fairness and Housing;

S. 3(1) def. of Director amended by No. 11/2026 s. 100.

Director means, in relation to the Centre, the Director referred to in section 659;

domestic partner of a person means—

(a) a person who is in a registered domestic relationship with a person; or

(b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender);

duty of candour, in relation to the provision of mental health and wellbeing services—

(a) by a mental health and wellbeing service provider other than the Institute, is the duty of candour specified in Division 9 of Part 5A of the Health Services Act 1988; and

(b) by the Institute, is the duty of candour specified in Part 14.4;

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

electronic health information system means the system referred to in section 727;

eligible patient means—

(a) a temporary treatment patient; or

(b) a treatment patient; or

(c) a security patient; or

(d) a forensic patient;

emergency service provider means—

(a) Ambulance Service—Victoria; and

(b) any other prescribed entity or prescribed class of entity;

enrolled nurse means a person who is registered in Division 2 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);

family violence has the same meaning as in section 5 of the Family Violence Protection Act 2008;

follow up investigation means an investigation conducted under section 484;

follow up investigation report means a report prepared under section 487;

Forensic Leave Panel has the meaning given in section 569;

forensic patient has the meaning given in section 569;

guardian has the same meaning as in the Guardianship and Administration Act 2019;

health information has the same meaning as in section 3(1) of the Health Records Act 2001;

health information statement means a statement prepared under section 740;

Health Secretary means the Secretary to the Department;

health service provider has the same meaning as in the Health Records Act 2001;

health services has the same meaning as in the Health Records Act 2001;

HPP has the same meaning as in the Health Records Act 2001;

HPV means Health Purchasing Victoria established by section 129 of the Health Services Act 1988;

HPV direction has the same meaning as in the Health Services Act 1988;

identifier has the same meaning as in the Health Records Act 2001;

information sharing agreement, other than in Chapter 9, means an agreement entered into under section 258;

information sharing principles means the principles set out in Division 1 of Part 17.1;

inpatient means a patient who is detained in a designated mental health service;

inpatient assessment order means an assessment order referred to in section 145(1)(b);

inpatient court assessment order means an order within the meaning of section 90(3) of the Sentencing Act 1991;

inpatient temporary treatment order means a temporary treatment order referred to in section 181(1)(b);

inpatient treatment order means a treatment order referred to in section 194(1)(b);

inquiry means an inquiry conducted under section 505;

inquiry report means a report prepared under section 507;

Institute means the Victorian Institute of Forensic Mental Health established by section 610;

Institute Board means the board of directors of the Institute;

instructional directive has the same meaning as in the Medical Treatment Planning and Decisions Act 2016;

intensive monitored supervision means providing mental health and wellbeing services to a person while—

(a) confining the person to a supervision unit from which the person cannot leave; and

(b) limiting the person's contact with others;

intensive monitored supervision order means an order referred to in section 577;

interim clinical review report means a written report prepared by the chief psychiatrist under section 289;

interim funding statement has the same meaning as in the Health Services Act 1988;

interstate authority, for an interstate mental health facility, means a person performing a similar or corresponding function to an authorised psychiatrist in relation to that facility;

interstate mental health facility, in Chapter 13, means a hospital or other facility to which a person in a participating State or Territory may be compulsorily admitted under a corresponding law in that State or Territory;

interstate transfer of treatment order means an order made by the Mental Health Tribunal under section 601;

interstate transfer order means an order made by the Mental Health Tribunal under section 602;

investigation of a complaint means an investigation conducted under section 476;

S. 3(1) def. of investigation hearing amended by No. 44/2025 s. 50(a).

investigation hearing means a hearing of the Mental Health and Wellbeing Commission conducted under section 490(3);

investigation notice means a notice given under section 480(1);

investigation report means a report prepared under section 481;

Justice Secretary means the Secretary to the Department of Justice and Community Safety;

mechanical restraint means the use of a device to prevent or restrict a person's movement;

medical treatment has the same meaning as in the Medical Treatment Planning and Decisions Act 2016, but does not include treatment within the meaning of this Act;

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

See section 48 of the Medical Treatment Planning and Decisions Act 2016 which provides that Part 4 (Medical treatment decisions) of that Act does not apply in relation to treatment for mental illness (if the person being treated is a patient) or neurosurgery for mental illness.

mental health advocate means a person who is employed or engaged by a non-legal mental health advocacy service provider to perform the role described in section 45;

Mental Health and Wellbeing Commission means the Mental Health and Wellbeing Commission established by section 411;

Mental Health and Wellbeing Commissioner means a Mental Health and Wellbeing Commissioner appointed under section 420;

mental health and wellbeing principles means the principles set out in Part 1.5;

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

(a) a registered medical practitioner; or

(b) a registered psychologist; or

(c) a registered nurse or enrolled nurse; or

(d) a registered paramedic; or

(e) a registered occupational therapist; or

(f) a social worker of a prescribed class; or

(g) a counsellor of a prescribed class; or

(h) 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

(i) a psychosocial support worker of a prescribed class; or

(j) an allied health professional of a prescribed class;

S. 3(1) def. of mental health and wellbeing service substituted by No. 20/2023 s. 3(2).

mental health and wellbeing service means—

(a) a service performed for the primary purpose of—

(i) improving or supporting a person's mental health and wellbeing; or

(ii) assessing, or providing treatment, care or support to, a person for mental illness or psychological distress; or

(iii) providing care or support to a person who is a family member, carer, or supporter, of a person with mental illness or psychological distress; or

(b) a service, or a service belonging to a class of service, that is prescribed to be a mental health and wellbeing service—

but does not include—

(c) a non-legal mental health advocacy service; or

(d) a service, or a service belonging to a class of service, that is prescribed not to be a mental health and wellbeing service;

S. 3(1) def. of mental health and wellbeing service provider substituted by No. 20/2023 s. 3(3).

mental health and wellbeing service provider means an entity (other than an individual) that—

(a) receives funding from—

(i) the State for the primary purpose of providing mental health and wellbeing services; or

(ii) another entity (other than an individual), being funding that—

(A) was received by the other entity from the State for the primary purpose of providing mental health and wellbeing services; and

(B) 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

(b) employs or engages a mental health and wellbeing professional in connection with providing the mental health and wellbeing services—

but does not include—

(c) an entity, or an entity belonging to a class of entity, that is prescribed not to be a mental health and wellbeing service provider;

Mental Health Tribunal means the Mental Health Tribunal established under section 330;

Mental Health Workforce Safety and Wellbeing Committee means the Mental Health Workforce Safety and Wellbeing Committee established by the Health Secretary under section 327A;

mental illness has the meaning given by section 4;

Ministerial agreement, in Chapter 13, means an agreement made under section 594;

National Board has the same meaning as in the Health Practitioner Regulation National Law;

neurosurgery for mental illness means—

(a) any surgical technique or procedure by which a lesion is created in a person's brain for the purpose of treatment; or

(b) the use of intracerebral electrodes to create a lesion in a person's brain for the purpose of treatment; or

(c) the use of intracerebral electrodes to stimulate a person's brain without creating a lesion for the purpose of treatment;

nominated support person means a nominated support person under Part 2.6;

non-legal advocacy protocols for mental health and wellbeing service providers means the protocols referred to in section 42(2);

non-legal mental health advocacy services means services provided by a non-legal mental health advocacy service provider;

non-legal mental health advocacy service provider includes—

(a) the primary non-legal mental health advocacy service provider; and

(b) any non-legal mental health advocacy service provider designated under section 41(1)(b);

nurse in charge has the same meaning as in the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015;

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

objectives of this Act means the objectives set out in Part 1.3;

opt-out register means the register established by the primary non-legal mental health advocacy service provider under section 51;

outcome report means a report prepared by the chief psychiatrist under section 280;

own initiative investigation means an investigation conducted under section 478;

S. 3(1) def. of parent inserted by No. 20/2023 s. 3(4).

parent, in relation to a person under the age of 18 years, includes the following—

(a) a person who has custody or daily care and control of the person;

(b) 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;

(c) any other person who has the legal right to make decisions about medical treatment of the person;

participating State or Territory, in Chapter 13, means a State or a Territory—

(a) in which a corresponding law is in force; and

(b) a Minister of which has made an agreement with the Minister under section 594;

S. 3(1) def. of party amended by No. 44/2025 s. 50(b).

party for the purposes of Parts 9.2 and 9.4, in relation to a complaint, means—

(a) the complainant; or

(b) the consumer in relation to the complaint if the consumer—

(i) is not the complainant; and

(ii) has not notified the Mental Health and Wellbeing Commission that the consumer does not wish to be a party to the complaint; or

(c) the mental health and wellbeing service provider in relation to which the complaint is made;

patient means—

(a) an assessment patient; or

(b) a court assessment patient; or

(c) a temporary treatment patient; or

(d) a treatment patient; or

(e) a security patient; or

(f) a forensic patient;

personal information has the same meaning as in section 3 of the Privacy and Data Protection Act 2014;

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—

(a) enable the person to be supported or assisted to carry out daily activities; or

(b) redirect the person because they are disoriented;

prescribed premises, in Chapter 8, means the premises of—

(b) a mental health and wellbeing service provider that provides residential services and 24 hour nursing care to persons who have mental illness; or

(c) a prescribed mental health and wellbeing service provider or a prescribed class of mental health and wellbeing service provider that provides residential services to persons who have mental illness;

President means the President of the Mental Health Tribunal appointed under section 337;

primary non-legal mental health advocacy service provider means the non-legal mental health advocacy service provider designated by the Health Secretary under section 41(1)(a);

principal registrar means the principal registrar of the Mental Health Tribunal employed under section 351(b);

protective services officer means a protective services officer within the meaning of the Victoria Police Act 2013 who is on duty at, or in the vicinity of, a designated place;

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

Public Advocate has the same meaning as in the Guardianship and Administration Act 2019;

public entity means—

(a) the Mental Health and Wellbeing Commission; or

(b) a regional mental health and wellbeing board; or

(c) a regional multiagency panel; or

(d) the Institute; or

(e) the Community Visitors Mental Health Board; or

(f) the Centre, to the extent that it performs functions and exercises powers under this Act;

(g) Youth Mental Health and Wellbeing Victoria;

public sector body has the same meaning as in the Public Administration Act 2004;

public sector employee has the same meaning as in the Public Administration Act 2004;

public service body has the same meaning as in the Public Administration Act 2004;

purchasing policy has the same meaning as in the Health Services Act 1988;

referred investigation means an investigation conducted under section 477;

regional mental health and wellbeing board means a board established under section 305;

regional multiagency panel means a panel appointed under section 318;

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 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 paramedic means a person who is registered under the Health Practitioner Regulation National Law to practise in the paramedicine profession (other than as a student);

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 means—

(a) a therapeutic treatment (placement) order within the meaning of the Children, Youth and Families Act 2005; or

(b) a family reunification order within the meaning of the Children, Youth and Families Act 2005; or

(c) a care by Secretary order within the meaning of the Children, Youth and Families Act 2005; or

(d) a long-term care order within the meaning of the Children, Youth and Families Act 2005;

remand centre has the same meaning as in the Children, Youth and Families Act 2005;

responsible designated mental health service means a designated mental health service that is specified in—

(a) an assessment order as being responsible for assessing the person who is subject to the order; or

(b) a temporary treatment order as being responsible for treating the person who is subject to the order; or

(c) a treatment order as being responsible for treating the person who is subject to the order;

restrictive intervention means seclusion, bodily restraint or chemical restraint;

Royal Commission into Victoria's Mental Health System means the Royal Commission into Victoria's Mental Health System established by Her Excellency the Honourable Linda Dessau AC, the Governor of the State of Victoria on 22 February 2019;

Rules Committee means the Rules Committee of the Mental Health Tribunal established under section 389;

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;

secure treatment order means an order within the meaning of section 534;

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

(a) 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

(b) subject to—

(i) a court secure treatment order; or

(ii) a secure treatment order;

senior available next of kin means—

(a) in relation to a deceased child—

(i) if a parent of the child is available, a parent of the child; or

(ii) if a parent of the child is not available, a brother or sister of the child who has attained 18 years of age and who is available; or

(iii) if no person referred to in subparagraph (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;

(b) in relation to any other deceased person—

(i) 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; or

(ii) 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 18 years of age and who is available; or

(iii) if no person referred to in subparagraph (i) or (ii) is available but a parent of the person is available, that parent; or

(iv) if no person referred to in subparagraph (i), (ii) or (iii) is available, a brother or sister of the person who has attained 18 years of age and is available;

service agreement means an agreement referred to in section 703;

specified service provider means—

(a) the provider of alcohol and drug treatment services funded by the State; or

(b) the provider of public or community housing services funded by the State; or

(c) a prescribed service provider or entity;

statement of rights has the meaning given by section 36;

statewide panel means the panel appointed under section 324;

supervision unit means a space that includes—

(a) bathroom facilities; and

(b) a space for sleeping; and

(c) a separate space for sitting; and

(d) any other prescribed kind of feature, furnishing or space;

support person has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

temporary treatment order means an order made under section 180;

temporary treatment patient means a person who is subject to a temporary treatment order;

S. 3(1) def. of transfer order inserted by No. 20/2023 s. 3(4).

transfer order means—

(a) an interstate transfer order; or

(b) an interstate transfer of treatment order—

as the case may be;

treatment has the meaning given by section 5;

treatment order means an order made under section 192(2)(a);

treatment patient means a person who is subject to a treatment order;

Tribunal member means a member of the Mental Health Tribunal;

unique identifier has the same meaning as in the Victorian Data Sharing Act 2017;

values directive has the same meaning as in the Medical Treatment Planning and Decisions Act 2016;

Victoria Police has the same meaning as in the Victoria Police Act 2013;

witness summons means a summons issued under section 385;

young patient means a patient who is under the age of 18 years;

young person means—

(a) in Chapter 3, a person under 18 years of age; and

(b) in Chapter 16, means a person who is at least 12, but not more than 25 years of age;

youth justice centre has the same meaning as in the Children, Youth and Families Act 2005;

Youth Mental Health and Wellbeing Board in relation to Youth Mental Health and Wellbeing Victoria, means the Board of directors of Youth Mental Health and Wellbeing Victoria established by section 679;

youth mental health and wellbeing service, in Chapter 16, means a mental health and wellbeing service that provides mental health and wellbeing services to young persons;

Youth Mental Health and Wellbeing Victoria means Youth Mental Health and Wellbeing Victoria established by section 673;

youth residential centre has the same meaning as in the Children, Youth and Families Act 2005.

(2) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered domestic relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

4 Meaning of mental illness in this Act

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

(2) A person is not to be considered to have mental illness by reason only of any one or more of the following—

(a) that the person expresses or refuses or fails to express a particular political opinion or belief;

(b) that the person expresses or refuses or fails to express a particular religious opinion or belief;

(c) that the person expresses or refuses or fails to express a particular philosophy;

(d) that the person expresses or refuses or fails to express a particular sexual preference, gender identity or sexual orientation;

(e) that the person engages in or refuses or fails to engage in a particular political activity;

(f) that the person engages in or refuses or fails to engage in a particular religious activity;

(g) that the person has engaged in a certain pattern of sexual behaviour;

(h) that the person engages in conduct that is contrary to community standards of acceptable conduct;

(i) that the person engages in illegal conduct;

(j) that the person engages in antisocial behaviour;

(k) that the person is intellectually disabled;

(l) that the person uses drugs or alcohol;

(m) that the person has a particular economic or social status or is a member of a particular cultural or racial group;

(n) that the person is or has previously been involved in family conflict;

(o) that the person is experiencing or has experienced psychological distress;

(p) that the person has previously been diagnosed with, or treated for, mental illness.

(3) Subsection (2)(l) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or alcohol from being regarded as an indication that a person has mental illness.

5 What is treatment?

(1) A person receives treatment for mental illness if professional skill is used—

(a) to remedy or alleviate the person's mental illness; or

(b) to alleviate the symptoms and reduce the ill effects of the person's mental illness.

(2) Treatment includes electroconvulsive treatment and neurosurgery.

(3) Detention is not treatment.

(4) To avoid doubt, treatment means treatment for mental illness.

6 What are appropriate supports?

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

(a) make decisions and participate in decision making; or

(b) understand information and their rights; or

(c) communicate their views, preferences, questions, or decisions.

The following are examples of appropriate supports—

(a) communicating with the person in the person's preferred language including with the assistance of interpreters;

(b) communicating in an accessible format, style or mode, including with the use of technology;

(c) communicating with the person in a way that is tailored to the person's needs including their literacy, developmental needs or cultural needs;

(d) communicating with the person in an appropriate physical or sensory environment;

(e) allowing and enabling the person's family member, carer, supporter or advocate to be present either in person or by the use of technology;

(f) providing appropriate spaces for communication between the person and the person's family members, carers, supporters or advocates.

7 Communicating under this Act

(1) This section applies if an entity is required by this Act to communicate with—

(a) a consumer; or

(b) a consumer's family; or

(c) a consumer's carer; or

(d) a consumer's guardian; or

(e) a consumer's nominated support person or support person; or

(f) a complainant.

(2) The entity must take reasonable steps—

(a) to provide appropriate supports; and

(b) to explain the content of the communication and answer any questions as clearly and as completely as possible.

(3) For the purposes of subsection (2), the entity must take reasonable steps to determine what appropriate supports would assist the person the entity is communicating with.

Reasonable steps may include the following—

(a) asking the person what supports would assist them to communicate and participate in decisions;

(b) in the case of a patient, having regard to the patient's advance statement of preferences (if any);

(c) in the case of a patient, asking their nominated support person what supports would assist the patient to communicate and participate in decision making; and

(d) providing a consumer with information about the types of supports that are available to them so that they can identify what would assist them.

(4) If a person is incapable of understanding information or any oral explanation at the time when it would otherwise be provided, the entity who is to give the information being communicated 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.

communicate includes—

(a) giving or providing any advice, notice or information; or

(b) asking for, receiving or hearing, any advice, notice, information, views, preferences, consent or other decisions.

See definition of entity in section 38 of the Interpretation of Legislation Act 1984 which includes a person and an unincorporated body.

8 Examining under this Act

(1) If a provision of this Act or the regulations requires that a person be examined, the person must be examined—

(a) if it is practicable—in person; or

(b) if it is not practicable—remotely.

(2) For the purposes of determining whether it is not practicable to conduct an examination in person, regard must be had to any relevant guidelines issued by the chief psychiatrist.

9 Avoiding unnecessary duplication

In performing a function or exercising a power under this Act, a public entity, the Health Secretary, chief officer, chief psychiatrist and Mental Health and Wellbeing Commission must liaise with other authorities and bodies so as to—

(a) avoid unnecessary duplication of inquiries, administration, reporting obligations or other actions; and

(b) facilitate the coordination and expedition of those inquiries or actions.

10 Interpretation of this Act and the mental health and wellbeing principles

(1) In interpreting this Act, a construction that would promote the mental health and wellbeing principles is to be preferred to a construction that would not promote those principles.

(2) The mental health and wellbeing principles, the decision making principles for treatment and interventions and the information sharing principles do not create a legal right in any person.

(3) Contravention of the mental health and wellbeing principles, the decision making principles for treatment and interventions and the information sharing principles—

(a) does not give rise to any civil cause of action merely because of contravention of the principle; and

(b) no damages may be awarded in respect of contravention of any of the principles.

(4) For the avoidance of doubt, nothing in this section limits any right to judicial review, the power to commence a proceeding, any cause of action or any right to damages a person may have under this Act or any other Act or law other than by operation of this section.

11 Act binds the Crown

(1) This Act binds the Crown in right of Victoria and, to the extent that the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations.

Part 1.3—Objectives

12 Objectives

In pursuit of the highest attainable standard of mental health and wellbeing for the people of Victoria, this Act has the following objectives—

(a) to promote conditions in which people can—

(i) experience good mental health and wellbeing; and

(ii) recover from mental illness or psychological distress;

(b) to reduce inequities in access to, and the delivery of, mental health and wellbeing services;

(c) 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—

(i) are accessible; and

(ii) respond in a timely way to people's needs and recognise that these needs may vary over time; and

(iii) are consistent with a person's treatment, care, support and recovery preferences wherever possible; and

(iv) are available early in life, early in onset and early in episode; and

(v) recognise and respond to the diverse backgrounds and needs of the people who use them; and

(vi) provide culturally safe and responsive services to Aboriginal and Torres Strait Islander people in order to support and strengthen connection to culture, family, community and Country; and

(vii) 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

(viii) 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

(ix) include a broad and accessible range of voluntary treatment and support options—

(A) to enable a reduction in the use of compulsory assessment and treatment; and

(B) to enable a reduction in the use of seclusion and restraint with the aim of eliminating its use within 10 years;

(d) 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;

(e) 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;

(f) 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;

(g) to recognise, 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;

(h) to promote and support the health and wellbeing of families, carers and supporters of people living with mental illness or psychological distress;

(i) 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;

(j) to promote the mental health and wellbeing principles.

Part 1.4—Statement of recognition and acknowledgement of treaty process

13 Statement of Recognition

(1) The Parliament recognises that Aboriginal people in Victoria are First Nations people of Australia and acknowledges their enduring connection to Country, kin, land and culture.

(2) The Parliament acknowledges the following—

(a) that Aboriginal self-determination serves as a foundational principle to improve mental health and wellbeing outcomes of Aboriginal people in Victoria;

(b) the lasting impact of laws, practices and policies on the mental health and wellbeing outcomes of Aboriginal and Torres Strait Islander people since colonisation and enduring to this day;

(c) cultural dislocation, oppression, intergenerational trauma, lack of healing, systemic racism, institutionalised inequality and the loss of land, lore and language continue to harm the mental health and wellbeing of Aboriginal people in Victoria today;

(d) the strength of Aboriginal people, culture, kinship and communities in the face of historical and ongoing injustices;

(e) Aboriginal people's ongoing connection to culture, community and Country and the importance of this connection for the mental health and wellbeing of Aboriginal people in Victoria.

(3) It is the intention of Parliament that the mental health system recognises, respects and supports the distinct cultural rights of Aboriginal people and their right to receive culturally safe holistic mental health and wellbeing services throughout Victoria.

(4) The Parliament supports initiatives which address the ongoing mental health inequalities experienced by Aboriginal people in Victoria.

(5) The Parliament recognises the essential role of Aboriginal community controlled health organisations in meeting the mental health and wellbeing and care needs of Aboriginal people in Victoria.

(6) The Parliament supports the development of future reforms which further Aboriginal self‑determination within mental health and wellbeing services in Victoria.

14 Acknowledgement of treaty process

The Parliament acknowledges Victoria's treaty process and the aspiration of Aboriginal people to achieve increased autonomy, Aboriginal decision making and control of planning, funding and administration of services for Aboriginal people, including through self-determined Aboriginal representative bodies established through treaty.

Part 1.5—Mental health and wellbeing principles

15 Mental health and wellbeing principles

This Part sets out the mental health and wellbeing principles.

16 Dignity and autonomy principle

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.

17 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.

18 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.

19 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.

20 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.

21 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.

22 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.

23 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.

24 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.

25 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—

(a) gender identity;

(b) sexual orientation;

(c) sex;

(d) ethnicity;

(e) language;

(f) race;

(g) religion, faith or spirituality;

(h) class;

(i) socioeconomic status;

(j) age;

(k) disability;

(l) neurodiversity;

(m) culture;

(n) residency status;

(o) geographic disadvantage.

(2) Mental health and wellbeing services are to be provided in a manner that—

(a) is safe, sensitive and responsive to the diverse abilities, needs and experiences of the person including any experience of trauma; and

(b) considers how those needs and experiences intersect with each other and with the person's mental health.

26 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—

(a) are safe; and

(b) are responsive to any current experience of family violence and trauma or any history of family violence and trauma; and

(c) recognise and respond to the ways gender dynamics may affect service delivery, treatment and recovery; and

(d) recognise and respond to the ways in which gender intersects with other types of discrimination and disadvantage.

27 Cultural safety principle

(1) Mental health and wellbeing services are to be culturally safe and responsive to people of all racial, ethnic, faith-based and cultural backgrounds.

(2) 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.

(3) 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.

28 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.

Part 1.6—Application of mental health and wellbeing principles and family violence limitation

29 Mental health and wellbeing service providers to make all reasonable efforts

A mental health and wellbeing service provider must—

(a) when exercising a function to which this Act applies, make all reasonable efforts to comply with the mental health and wellbeing principles; and

(b) when making a decision under this Act, give proper consideration to the mental health and wellbeing principles; and

(c) provide safe, person-centred mental health and wellbeing services; and

(d) foster continuous improvement in the quality and safety of the care and mental health and wellbeing services they provide.

30 Mental health and wellbeing service providers to address one or more mental health and wellbeing principles in annual report

A mental health and wellbeing service provider that is required to prepare an annual report must include in that annual report information about actions taken during the reporting period that relate to giving effect to one or more of the mental health and wellbeing principles.

31 Information sharing limitation if there may be a risk of family violence or other serious harm

(1) This section applies if a person (first person) is required or authorised under this Act to give or disclose the personal information or health information of a person and the first person reasonably believes that by doing so there is a risk that a person may be subjected to family violence or other serious harm.

(2) The first person must not give or disclose the personal information or health information of a person to another person if the first person reasonably believes that by doing so there is a risk that a person may be subjected to family violence or other serious harm.

(3) To avoid doubt, this section applies regardless of whether the person has consented to the disclosure of their personal information or health information.

Chapter 2—Protection of rights

Part 2.1—Supporting patient rights

32 Designated mental health service must determine if patient has an advance statement of preferences or a nominated support person

A designated mental health service, as soon as practicable after becoming responsible for a patient's assessment or treatment, must take all reasonable steps to find out whether—

(a) the patient has an advance statement of preferences or a nominated support person; and

(b) the statement or nomination is in effect.

33 Duty to ensure all reasonable efforts are made to give effect to patient's advance statement of preferences

Subject to Chapters 4, 10 and 11, if a designated mental health service finds that a patient has an advance statement of preferences that is in effect, the designated mental health service must ensure that all reasonable efforts are made to give effect to the patient's statement.

34 Designated mental health service must take reasonable steps

(1) A designated mental health service must take all reasonable steps to support a nominated support person to perform their role under this Act.

(2) Without limiting subsection (1), and subject to this Act, steps a designated mental health service may take include the following—

(a) allowing the nominated support person to view documents relevant to the patient's care and treatment at the service including—

(i) the patient's treatment plan; and

(ii) any known advance statement of preferences; and

(b) providing the nominated support person with information about the patient's care and treatment at the service; and

(c) providing the nominated support person with reasonable opportunities to attend any meetings between the patient and the persons responsible for their treatment.

35 Taking reasonable steps

(1) An entity required by or under this Act to consider an advance statement of preferences or consult with a nominated support person, before making a decision that requires consideration of the patient's preferences, must take all reasonable steps to find out whether—

(a) a patient has an advance statement of preferences or a nominated support person; and

(b) the statement or nomination is in effect.

See definition of entity in section 38 of the Interpretation of Legislation Act 1984 which includes a person and an unincorporated body.

(2) An entity to whom subsection (1) applies may take a statement or nomination to be in effect for the purposes of this Act if—

(a) the patient is unable to provide information or confirmation that the statement or nomination is in effect; and

(b) the information available to the entity indicates that—

(i) the patient has a statement or nomination; and

(ii) it has not been revoked.

Part 2.2—Statement of rights

36 What is a statement of rights?

A statement of rights is a document for each of the following persons that sets out the rights of that person under this Act and the processes that apply while that person is receiving a mental health and wellbeing service—

(a) a person admitted to a bed-based service at a designated mental health service;

(b) an assessment patient;

(c) a court assessment patient;

(d) a temporary treatment patient;

(e) a treatment patient;

(f) a security patient who is subject to a secure treatment order;

(g) a security patient who is subject to a court secure treatment order;

(h) a forensic patient;

(i) a person whose informed consent in relation to electroconvulsive treatment is sought;

(j) a person whose informed consent in relation to neurosurgery for mental illness is sought;

(k) a person who is subject to an order made by the Mental Health Tribunal for the performance of electroconvulsive treatment on that person;

(l) a person who is subject to an order made by the Mental Health Tribunal for the performance of neurosurgery for mental illness on that person;

(m) a person who is subject to an intensive monitored supervision order.

37 Requirement to provide a statement of rights

A registered medical practitioner, authorised mental health practitioner, authorised psychiatrist or psychiatrist (as the case may be) must take all reasonable steps to ensure that a person in circumstances referred to in section 36 is given a statement of rights.

38 Form of statement of rights

A statement of rights must—

(a) be in the form approved by the Chief Officer; and

(b) contain the information approved by the Chief Officer for each person referred to in section 36.

39 Explanation of statement of rights

A registered medical practitioner, authorised mental health practitioner, authorised psychiatrist or psychiatrist (as the case may be) must take all reasonable steps to ensure that a person specified in section 36 who receives a statement of rights understands their rights as set out in the statement.

40 Statement of rights to be given to support persons

If a statement of rights is given to a person under this Act, the registered medical practitioner, authorised mental health practitioner, authorised psychiatrist or psychiatrist (as the case may be) must take all reasonable steps to ensure that a statement of rights is also given to the following persons—

(a) if the person is a patient, any nominated support person of the patient;

(b) any guardian of the person;

(c) any carer of the person if the carer has been notified of any of the following because it directly affects the carer and the care relationship—

(i) circumstances, an event or a decision that has occurred in relation to the person under this Act;

(ii) an order to which the person has been made subject to under this Act;

(d) any parent of the person, if the person is under 16 years of age;

(e) in the case of an order made by the Mental Health Tribunal for the performance of electroconvulsive treatment on a person who is not a patient—

(i) the person's medical treatment decision maker; and

(ii) the person's support person;

(f) the DFFH Secretary, if that Secretary has parental responsibility for the person under a relevant child protection order.

Part 2.3—Non-legal mental health advocacy services

41 Primary non-legal mental health advocacy service provider and other providers

(1) The Health Secretary—

(a) must designate a suitable non-legal mental health advocacy service provider to be the primary non-legal mental health advocacy service provider of non-legal mental health advocacy services under this Act; and

(b) may designate other suitable non-legal mental health advocacy service providers to be non-legal mental health advocacy service providers of non-legal mental health advocacy services under this Act.

See also section 254 for the Health Secretary's functions in relation to non-legal mental health advocacy services generally.

(2) For the purposes of subsection (1), a non-legal mental health advocacy service provider is suitable to be designated by the Health Secretary if*—*

(a) the provider is a body corporate;

(b) having regard to the following, the Health Secretary is satisfied the provider—

(i) has mental health advocates and other staff with experience of receiving requests for support and notifications from consumers of mental health and wellbeing services and care;

(ii) is independent from mental health and wellbeing service providers;

(iii) has independent legal consultation and advice available for mental health advocates and referral pathways for legal assistance for consumers;

(iv) has in place adequate systems to ensure the secure management of information that may be obtained in the course of providing non-legal mental health advocacy services.

(3) The Health Secretary must publish the name, and contact details, of the primary non-legal mental health advocacy service provider and any other non-legal mental health advocacy service providers designated under subsection (1) on the Department's website.

42 Chief Officer to issue protocols to non-legal mental health advocacy service providers and mental health and wellbeing service providers

(1) The Chief Officer must prepare written protocols for non-legal mental health advocacy service providers in relation to the following—

(a) any information or records to be maintained and reported to the Health Secretary or the Mental Health and Wellbeing Commission, including how often it is to be reported;

(b) if providers are designated under section 41(1)(b), how all providers designated under section 41 should work together;

(c) the provision of non-legal mental health advocacy services to children and young persons;

(d) the management of the opt-out register including with respect to notifications received in respect of persons named in the register;

(e) any other prescribed matters.

(2) The Chief Officer must prepare written protocols for mental health and wellbeing service providers in relation to the process under this Act for the making, and form, of notifications to the primary non-legal mental health advocacy service provider.

(3) In preparing protocols under subsection (1) or (2), the Chief Officer must consult—

(a) non-legal mental health advocacy service providers; and

(b) mental health and wellbeing service providers; and

(c) consumers; and

(d) family, carers and supporters of consumers.

(4) The Chief Officer must ensure that protocols are—

(a) published on the Department's website;

(b) in the case of protocols prepared under subsection (1), given to non-legal mental health advocacy service providers; and

(c) in the case of protocols prepared under subsection (2), given to mental health and wellbeing service providers.

(5) The Chief Officer must not prepare any protocols under subsection (1)—

(a) in respect of a specific consumer, mental health advocate or non-legal mental health advocacy service provider unless the only designated non-legal mental health advocacy service provider is the primary non-legal mental health advocacy service provider; or

(b) to require a mental health advocate or non‑legal mental health advocacy service provider—

(i) to take any action in respect of a specific consumer; or

(ii) to provide information about an individual consumer that could identify the consumer.

43 Notifications

Any notifications required to be made to the primary non-legal mental health service provider under this Act must be made in accordance with the non-legal advocacy protocols for mental health and wellbeing service providers.

44 Role of non-legal mental health advocacy service providers

(1) The primary non-legal mental health advocacy service provider is responsible for—

(a) receiving notifications or requests for support from or on behalf of consumers; and

(b) receiving notifications from entities required to notify the primary non-legal mental health advocacy service provider of matters relating to consumers under this Act; and

(c) coordinating the provision of non-legal mental health advocacy services by any non‑legal mental health advocacy service providers designated under section 41(1)(b); and

(d) maintaining the opt-out register.

(2) The primary non-legal mental health advocacy service provider and any non-legal mental health advocacy service provider designated under section 41(1)(b) is expected to—

(a) employ, contract or otherwise engage persons to be mental health advocates; and

(b) provide services to consumers in accordance with the protocols issued by the Chief Officer under section 42; and

(c) provide information to, and educate consumers and the community generally about—

(i) the role of non-legal mental health advocacy service providers and mental health advocates; and

(ii) the operation of this Act including the mental health and wellbeing principles and the rights and safeguards for people under this Act; and

(iii) other relevant Acts including the Charter of Human Rights and Responsibilities Act 2006 and how they apply to this Act.

45 Role of a mental health advocate

The role of a mental health advocate is—

(a) to provide non-legal assistance to a consumer in accordance with any instructions given to the advocate by the consumer, including to assist the consumer—

(i) to understand information regarding their assessment, treatment, care and recovery; or

(ii) to make decisions regarding their assessment, treatment and care; or

(iii) to understand and exercise their rights under this Act; or

(iv) to make an advance statement of preferences; or

(v) to appoint a nominated support person; or

(vi) to seek a second psychiatric opinion; or

(vii) to seek legal advice; or

(viii) to apply to the Mental Health Tribunal; or

(ix) to understand and access the mental health and wellbeing service system; or

(x) to express their decisions, views and preferences to a member of the mental health and wellbeing workforce and other relevant parties; or

(xi) to make a complaint; and

(b) to represent the views of the consumer to staff of a mental health and wellbeing service provider in accordance with any instructions given to the advocate by the consumer.

46 Role of a mental health advocates in relation to a child or young person

(1) If a consumer is 15 years of age or younger, the role of a mental health advocate is—

(a) to promote the views and preferences of the consumer; and

(b) to work with the family, carers and supporters of the consumer to ensure that the consumer's best interests are protected.

(2) In performing the role under subsection (1), a mental health advocate must—

(a) provide advocacy services in accordance with the protocols issued under section 42(1)(c); and

(b) if the DFFH Secretary has parental responsibility for a consumer under a relevant child protection order, consult that Secretary.

47 What can a mental health advocate do?

(1) In accordance with the instructions of a consumer who is at least 16 years of age, a mental health advocate may do any of the following—

(a) access the personal information or health information of the consumer, including the consumer's advance statement of preferences, held by a mental health and wellbeing service provider;

(b) attend meetings with the consumer and any registered medical practitioner or staff of a mental health and wellbeing service provider involved in the assessment, treatment and care of the consumer;

(c) seek information on behalf of the consumer from the staff of a mental health and wellbeing service provider;

(d) contact, seek information or provide advice to a consumer's nominated support person, family, carer or supporters;

(e) advocate for the rights of a family member, carer or supporter if those rights relate to the treatment, care, support or recovery of the consumer.

(2) If a consumer is a patient who is at least 16 years of age and a mental health advocate is unable to obtain instructions from the patient, the mental health advocate may do the following to ensure the rights of the patient are upheld—

(a) attend a relevant designated mental health service to observe and meet the patient;

(b) obtain from the designated mental health service—

(i) information about the patient's treatment and welfare, including accessing the personal information or health information of the patient; and

(ii) any advance statement of preferences made by the person that is known to the designated mental health service; and

(iii) the contact details of any nominated support person of the consumer or other primary support person of the consumer if the consumer does not have a nominated support person;

(c) contact and liaise with the patient's nominated support person or carer to ascertain the patient's views and preferences regarding their treatment and recovery;

(d) represent the likely views and preferences of the patient to the mental health and wellbeing service provider and advocate for those views and preferences to be given effect;

(e) advocate for the rights of the consumer under this Act or any other Act.

48 Consumer instructions to mental health advocate

(1) A consumer who has instructed a mental health advocate to assist them may withdraw their instructions at any time.

(2) A withdrawal of instructions under subsection (1) may be—

(a) oral or written; and

(b) given to the mental health advocate or to the primary non-legal mental health advocacy service provider.

49 Mental health and wellbeing service provider to give reasonable assistance

A mental health and wellbeing service provider must give any reasonable assistance to any mental health advocate for the purposes of enabling the advocate to perform and carry out their functions, duties and responsibilities with respect to a consumer.

50 Consideration of mental health and wellbeing principles

In the performance of a function or duty under this Act, a non-legal mental health advocacy service provider must give proper consideration to the mental health and wellbeing principles.

51 Opt-out register

(1) The primary non-legal mental health advocacy service provider must establish, maintain and manage a register to be known as the opt-out register—

(a) to record the details of consumers who do not wish to be offered or provided with non‑legal mental health advocacy services; and

(b) to manage notifications made in respect of consumers who have instructed that they do not want to receive non-legal mental health advocacy services.

(2) The primary non-legal mental health advocacy service provider must publish on its website information regarding how a consumer may indicate their preferences regarding the provision of non-legal mental health advocacy services.

(3) The Chief Office must publish the information referred to in subsection (2) on the Department's website.

Part 2.4—Right to communicate

52 Definition

communicate, in relation to an inpatient, means—

(a) sending from, or receiving at, a designated mental health service uncensored private communication which may include communication by letter, telephone or electronic communication; or

(b) receiving visitors at a designated mental health service at reasonable times, including an Australian legal practitioner, mental health advocate or nominated support person of the inpatient.

53 Right to communicate

(1) Subject to this Part, an inpatient has a right to communicate lawfully with any person, including by electronic communication.

See definition of electronic communication in the Interpretation of Legislation Act 1984 and see the Electronic Transactions (Victoria) Act 2000.

(2) Without limiting subsection (1), an inpatient has a right to communicate with any person for the purpose of—

(a) seeking legal advice or legal representation; or

(b) seeking the services of a mental health advocate.

(3) The members of staff of a designated mental health service must ensure that reasonable steps are taken to assist an inpatient to communicate lawfully with any person.

54 Restriction on right to communicate

(1) Subject to subsection (2), an authorised psychiatrist in writing may direct staff at a designated mental health service to restrict an inpatient's right to communicate.

(2) A direction under subsection (1) may be made only if the authorised psychiatrist is satisfied that the restriction is reasonably necessary to protect the health, safety and wellbeing of the inpatient or of another person.

(3) A direction cannot be made under subsection (1) which restricts an inpatient's right to communicate with—

(a) a legal representative; or

(b) the chief psychiatrist; or

(c) the Mental Health and Wellbeing Commission; or

(d) the Mental Health Tribunal; or

(e) a community visitor; or

(f) a non-legal mental health advocacy service provider or a mental health advocate; or

(g) the DFFH Secretary, if that Secretary has parental responsibility for the inpatient under a relevant child protection order; or

(h) a prescribed person or body.

(4) An authorised psychiatrist must ensure that if the authorised psychiatrist directs that an inpatient's right to communicate be restricted, those restrictions are the least restrictive possible to protect the health, safety and wellbeing of the inpatient or of another person.

55 Persons to be notified of restriction on inpatient's right to communicate

(1) An authorised psychiatrist who makes a direction under section 54 to restrict an inpatient's right to communicate must ensure that reasonable steps are taken to inform the inpatient and the following persons about the restriction, and the reason for it—

(a) the inpatient's nominated support person;

(b) a guardian of the inpatient;

(c) a carer of the inpatient, if the authorised psychiatrist is satisfied that the restriction will directly affect the carer and the care relationship;

(d) a parent of the inpatient, if the inpatient is under the age of 16 years;

(e) the DFFH Secretary, if that Secretary has parental responsibility for the inpatient under a relevant child protection order.

(2) An authorised psychiatrist who makes a direction under section 54 to restrict an inpatient's right to communicate must ensure that reasonable steps are taken to inform the primary non-legal mental health advocacy service provider about the restriction and the reason for it.

56 Restriction on right to communicate to be monitored regularly

S. 56(1) amended by No. 44/2025 s. 51(1).

(1) A direction under section 54 to restrict an inpatient's right to communicate must be reviewed, by any authorised psychiatrist employed or engaged by the designated mental health service at which the patient is being treated, on a regular basis to determine whether the restriction needs to be continued.

S. 56(2) amended by No. 44/2025 s. 51(2).

(2) If an authorised psychiatrist is satisfied that it is no longer necessary to restrict the inpatient's right to communicate, the authorised psychiatrist must immediately end the restriction.

Part 2.5—Advance statements of preferences

57 What is an advance statement of preferences?

An advance statement of preferences is a document that sets out a person's preferences in relation to their treatment, care and support in the event that they become a patient.

58 Making an advance statement of preferences

(1) An advance statement of preferences may be made at any time.

(2) An advance statement of preferences must—

(a) be signed and dated by the person making it; and

(b) specify any or all of the following in relation to the person making it—

(i) their preferences relating to treatment;

(ii) their preferences relating to care and support including appropriate supports to assist them to communicate and participate in decision making;

(iii) their preferences as to whom may be provided with their health information;

(iv) the name and contact details of their nominated support person or advocate;

(v) the name and contact details of any person or organisation to be informed that the person is a patient; and

See also section 33.

(d) include a statement signed by the witness stating that—

(i) in the witness' opinion, the person making the statement understands what it is, the consequences of making it and how to revoke it; and

(ii) in the witness' opinion, the person making the statement appears to have done so of their own free will; and

(iii) the witness observed the person making the statement sign it; and

(iv) the witness is an adult; and

(3) An advance statement of preferences is in effect from the time it is made until it is revoked.

59 Revoking an advance statement of preferences

(1) An advance statement of preferences is revoked if the person who made it—

(a) makes a new advance statement of preferences; or

(b) revokes the advance statement of preferences.

(2) A revocation of an advance statement of preferences must—

(a) state that the advance statement of preferences is revoked; and

(b) be signed and dated by the person revoking the statement; and

(d) include a statement signed by the witness stating that—

(i) in the witness' opinion, the person revoking the statement understands the consequences of revoking it including that it will no longer be in effect for the purposes of this Act; and

(ii) in the witness' opinion, the person revoking the statement appears to have done so of their own free will; and

(iii) the witness observed the person revoking the statement sign it; and

(iv) the witness is an adult; and

60 Advance statement of preferences must not be amended

(1) An advance statement of preferences must not be amended.

(2) A person who wishes to change the preferences expressed in their advance statement of preferences must make a new advance statement of preferences.

Part 2.6—Nominated support persons

61 Role of nominated support person

(1) The role of a nominated support person in relation to a patient is—

(a) to advocate for the views and preferences expressed by the patient, including preferences provided in the advance statement of preferences; and

(b) to support the patient to make and participate in decisions; and

(c) to advocate for any appropriate supports that would assist the patient to communicate and participate in decision making; and

(d) to support the patient to understand information and decisions; and

(e) to support the patient to communicate their views, preferences, decisions, questions or concerns; and

(f) to receive information, and be consulted, about the patient in accordance with this Act; and

(g) to support the patient to exercise any rights the patient has under this Act.

(2) A nominated support person is to perform their role in a manner that supports a constructive relationship between—

(a) the patient; and

(b) the authorised psychiatrist and any other person employed or engaged, or volunteering, at a designated mental health service.

62 Nomination of a nominated support person

(1) A person may nominate another person to be their nominated support person at any time.

(2) The nomination of a nominated support person must—

(b) be signed and dated by the person making the nomination; and

(c) specify the name and contact details of the person nominated; and

(d) be witnessed by an adult; and

(e) include a statement by the witness that—

(i) in the witness' opinion, the person making the nomination understands what a nomination is and that the person may revoke it; and

(ii) in the witness' opinion, the person making the nomination appears to be making it of their own free will; and

(iii) the witness observed the person making the nomination sign it; and

(iv) the witness is an adult.

(3) The person nominated to be the nominated support person must not be the person who witnesses the nomination.

63 Acceptance

(1) A nomination is made when the nominated support person signs an acceptance form.

(2) The acceptance form must include a statement by the person nominated that they agree to being a nominated support person.

(3) A nomination under this Part is in effect from the time it is made until the time it is revoked.

64 When is a nomination revoked?

A nomination is revoked if—

(a) the person who made the nomination—

(i) makes a new nomination; or

(ii) revokes the nomination; or

(b) the nominated support person resigns from their role as a nominated support person.

65 How may a person who made a nomination revoke it?

(1) A person who has made a nomination under this Part may revoke it at any time.

(2) A revocation must—

(a) state that the nomination is revoked; and

(b) be signed and dated by the person revoking the nomination; and

(d) include a statement signed by the witness that—

(i) in the witness' opinion, the person revoking the nomination understands what a revocation is; and

(ii) the witness observed the person revoking the nomination sign it; and

(iii) in the witness' opinion, the person revoking the nomination understands 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; and

(iv) in the witness' opinion, the person revoking the nomination appears to have done so of their own free will; and

(v) the witness is an adult; and

(3) A person who revokes a nomination must—

(a) take reasonable steps to inform the nominated support person of the revocation; and

(b) if the person is a patient, inform the authorised psychiatrist.

66 How may a nominated support person resign?

(1) A nominated support person may resign from their role as a nominated support person at any time.

(2) A resignation must—

(b) state the person's full name; and

(c) state that the person resigns from the role of nominated support person; and

(d) be signed by the person.

(3) A nominated support person who resigns must—

(a) take reasonable steps to inform the person who appointed them of their resignation; and

(b) if the person who appointed them is a patient, inform the authorised psychiatrist.

Part 2.7—Second psychiatric opinions in relation to compulsory treatment and certain orders

67 Right to a second psychiatric opinion

(1) An eligible patient may seek a second psychiatric opinion at any time.

See section 3(1) for the meaning of eligible patient.

(2) The following may seek a second psychiatric opinion—

(a) any person, at the request of the eligible patient;

(b) a guardian of the eligible patient;

(c) a parent of the eligible patient, if the eligible patient is under the age of 16 years;

(d) the DFFH Secretary, if that Secretary has parental responsibility for the eligible patient under a relevant child protection order.

(3) If an eligible patient seeks a second psychiatric opinion and requests assistance to obtain that opinion, the authorised psychiatrist must ensure that reasonable steps are taken to assist the patient with that request.

68 Who may give a second psychiatric opinion?

A second psychiatric opinion under this Part may be sought from any psychiatrist.

69 Functions of a psychiatrist giving a second opinion

(1) The functions of a psychiatrist giving a second psychiatric opinion are—

(a) to assess the eligible patient (other than a forensic patient) and to provide an opinion as to whether the criteria for the relevant order apply to the patient; and

(b) to review the treatment provided to the eligible patient under the relevant order and to recommend any changes that the psychiatrist giving the second opinion is satisfied are appropriate in the circumstances to the treatment provided under that order.

(2) A psychiatrist who is asked to give a second psychiatric opinion under this Part cannot override the treatment prescribed by the authorised psychiatrist.

70 Powers of a psychiatrist giving a second psychiatric opinion

A psychiatrist giving a second psychiatric opinion—

(a) may examine the eligible patient; and

(b) may access any health information that is held by the designated mental health service that is treating the eligible patient and is relevant to the treatment of the patient; and

(c) may consult the authorised psychiatrist and any other staff of the designated mental health service about the treatment of the eligible patient; and

(d) in deciding whether to recommend any changes to the treatment and the nature of those changes—

(i) must have regard to the eligible patient's views and preferences about—

(A) treatment; and

(B) any beneficial alternative treatments that are reasonably available; and

(C) the reasons for these views and preferences, including any recovery outcomes that the patient would like to achieve; and

(ii) must have regard to the views and preferences of the eligible patient expressed in their advance statement of preferences; and

(iii) to the extent that is reasonable in the circumstances, must have regard to the following—

S. 70(d)(iii)(A) amended by No. 44/2025 s. 52.

(A) the views and preferences of the eligible patient expressed by the eligible patient's nominated support person;

(B) the views of a guardian of the eligible patient;

(C) the views of a carer of the eligible patient, if the psychiatrist is satisfied that the recommended changes will directly affect the carer and the care relationship;

(D) the views of a parent of the eligible patient, if the eligible patient is under the age of 16 years;

(E) the views of the DFFH Secretary, if that Secretary has parental responsibility for the eligible patient under a relevant child protection order.

71 Reasonable assistance must be provided

A member of staff of a designated mental health service must provide a psychiatrist giving a second psychiatric opinion with any reasonable assistance that the psychiatrist requires in order to perform a function or exercise a power under this Part.

72 Second psychiatric opinion report

(1) A psychiatrist who gives a second psychiatric opinion must prepare a written report that includes—

(a) the psychiatrist's opinion as to whether the criteria for the relevant order apply to the patient (other than a forensic patient); and

(b) the psychiatrist's opinion regarding—

(i) the treatment provided to the patient while subject to the relevant order; and

(ii) any recommended changes to the treatment that the second opinion psychiatrist is satisfied are appropriate in the circumstances.

(2) The psychiatrist must ensure that reasonable steps are taken to give, in a timely manner, a copy of the report prepared under subsection (1) to—

(a) the eligible patient; and

(b) the person who requested the second psychiatric opinion on behalf of the eligible patient; and

(c) the authorised psychiatrist; and

(d) the eligible patient's nominated support person; and

(e) a guardian of the eligible patient; and

(f) a carer of the eligible patient, if the psychiatrist is satisfied that the second opinion will directly affect the carer and the care relationship; and

(g) a parent of the eligible patient, if the eligible patient is under the age of 16 years; and

(h) the DFFH Secretary, if that Secretary has parental responsibility for the eligible patient under a relevant child protection order.

73 Authorised psychiatrist must examine eligible patient (other than forensic patient) again in specified circumstances

(1) If a report under section 72 (other than a report in relation to a forensic patient) expresses the opinion that the criteria for the relevant order do not apply to the eligible patient, the authorised psychiatrist must—

(a) examine the eligible patient as soon as practicable after receiving a copy of the report; and

(b) determine whether the criteria for the relevant order apply to the eligible patient.

(2) If the authorised psychiatrist determines that the criteria for an order to which the eligible patient (other than a forensic patient) is subject apply, the authorised psychiatrist must—

(a) give the eligible patient the reasons for the determination; and

(b) advise the eligible patient that they have the right to apply to the Mental Health Tribunal—

(i) for a determination as to whether the criteria for the order apply to the eligible patient; or

(ii) for revocation of the order.

(3) For the purposes of subsection (2), the authorised psychiatrist must do so—

(a) orally as soon as practicable after the determination is made; and

S. 73(3)(b) amended by No. 20/2023 s. 4(1).

(b) in writing within 10 business days after the determination is made.

S. 73(4) amended by No. 20/2023 s. 4(2).

(4) The authorised psychiatrist must give written reasons for the determination within 10 business days after the determination is made to—

(a) the person who requested the second psychiatric opinion on behalf of the eligible patient; and

(b) the eligible patient's nominated support person; and

(c) a guardian of the eligible patient; and

(d) a carer of the eligible patient, if the psychiatrist is satisfied that the second opinion will directly affect the carer and the care relationship; and

(e) a parent of the eligible patient, if the eligible patient is under the age of 16 years; and

(f) the DFFH Secretary, if that Secretary has parental responsibility for the person under a relevant child protection order.

74 Authorised psychiatrist must review eligible patient's treatment in specified circumstances

(1) If a report under section 72 recommends changes to the eligible patient's current treatment, the authorised psychiatrist, as soon as practicable, must—

(a) review the patient's treatment; and

(b) decide whether to adopt any of the recommendations made in the report.

(2) If the authorised psychiatrist decides to adopt any of the recommendations, the authorised psychiatrist must revise the eligible patient's treatment.

(3) If the authorised psychiatrist decides to adopt none or to adopt only some of the recommendations, the authorised psychiatrist must—

(a) give the psychiatrist's reasons to the eligible patient; and

(b) advise the eligible patient that the patient has the right to apply to the chief psychiatrist for a review of the patient's treatment.

(4) For the purposes of subsection (3), the authorised psychiatrist must do so—

(a) orally as soon as practicable after the decision is made; and

S. 74(4)(b) amended by No. 20/2023 s. 5(1).

(b) in writing within 10 business days after the decision is made.

S. 74(5) amended by No. 20/2023 s. 5(2).

(5) The authorised psychiatrist must give written reasons for the decision within 10 business days after the decision is made to—

(a) the person who requested the second psychiatric opinion on behalf of the eligible patient; and

(b) the eligible patient's nominated support person; and

(c) a guardian of the eligible patient; and

(d) a carer of the eligible patient, if the psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; and

(e) a parent of the eligible patient, if the eligible patient is under the age of 16 years; and

(f) the DFFH Secretary, if that Secretary has parental responsibility for the person under a relevant child protection order.

75 Application to chief psychiatrist for review of treatment

(1) If the authorised psychiatrist decides to adopt none or only some of the recommended changes made in the report under section 72, the eligible patient or a person specified in section 67(2) may apply to the chief psychiatrist to review the treatment of the patient.

(2) The person seeking the review must give the chief psychiatrist any other information that the chief psychiatrist requests in relation to the treatment of the eligible patient.

(3) A member of staff of the designated mental health service must provide an eligible patient with any reasonable assistance in making an application under subsection (1) if the eligible patient requests such assistance.

(4) The authorised psychiatrist may continue to administer treatment to an eligible patient during the conduct of a review under section 76.

76 Review by chief psychiatrist

(1) The chief psychiatrist must review the treatment of an eligible patient within 10 business days after receiving an application under section 75(1).

(2) For the purposes of the review, the chief psychiatrist may—

(a) examine the eligible patient; and

(b) access any health information that—

(i) is held by the designated mental health service treating the eligible patient; and

(ii) is relevant to the treatment of the eligible patient; and

(c) consult the authorised psychiatrist and any other staff of the designated mental health service about the treatment of the eligible patient.

(3) For the purposes of the review, the designated mental health service must provide the chief psychiatrist with any reasonable assistance the chief psychiatrist requires to conduct the review.

(4) In deciding whether to recommend any changes to the treatment and the nature of those changes, the chief psychiatrist, to the extent that is reasonable in the circumstances, must have regard to—

(a) the eligible patient's views and preferences about—

(i) treatment of their mental illness; and

(ii) any beneficial alternative treatments that are reasonably available; and

(iii) the reasons for those views and preferences, including any recovery outcomes that the eligible patient would like to achieve; and

(b) the views and preferences of the eligible patient expressed in their advance statement of preferences; and

S. 76(4)(c) amended by No. 44/2025 s. 53.

(c) the views and preferences of the eligible patient expressed by the eligible patient's nominated support person; and

(d) the views of a guardian of the eligible patient; and

(e) the views of a carer of the eligible patient, if the chief psychiatrist is satisfied that the recommended changes will directly affect the carer and the care relationship; and

(f) the views of a parent of the eligible patient, if the eligible patient is under the age of 16 years; and

(g) the views of the DFFH Secretary, if that Secretary has parental responsibility for the eligible patient under a relevant child protection order.

(5) The chief psychiatrist, if appropriate in the circumstances, may direct the authorised psychiatrist to change the treatment of the eligible patient.

(6) A direction under subsection (5) is not limited to the recommendations made in any report prepared under section 72.

(7) The chief psychiatrist, as soon as practicable, must ensure that reasonable steps are taken to notify the following in writing of the outcome of a review—

(a) the eligible patient;

(b) any person, other than the eligible patient, who applied for the review under section 75;

(c) the authorised psychiatrist;

(d) the eligible patient's nominated support person;

(e) a guardian of the eligible patient;

(f) a carer of the eligible patient, if the chief psychiatrist is satisfied that the recommended changes will directly affect the carer and the care relationship;

(g) a parent of the eligible patient, if the eligible patient is under the age of 16 years;

(h) the DFFH Secretary, if that Secretary has parental responsibility for the eligible patient under a relevant child protection order.

77 Application for review may be withdrawn

(1) An eligible patient or a person specified in section 67(2) who applies to the chief psychiatrist to review the treatment of the eligible patient may withdraw the application at any time.

(2) The patient or person may—

(a) advise the chief psychiatrist of a withdrawal made under subsection (1); or

(b) request the authorised psychiatrist to advise the chief psychiatrist of the withdrawal made under subsection (1).

Chapter 3—Treatment and interventions

Part 3.1—Decision making principles for treatment and interventions

78 Application of Part

(1) This Part sets out the decision making principles for treatment and interventions.

(2) This Part applies to this Chapter and Chapter 4.

79 Care and transition to less restrictive support principle

Compulsory assessment and treatment is 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.

80 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—

(a) serious distress experienced by the person; and

(b) the disruption of the relationships, living arrangements, education or employment of the person.

81 No therapeutic benefit to restrictive interventions principle

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

82 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.

83 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.

S. 84 (Heading) amended by No. 44/2025 s. 54.

84 Consideration of, and guidelines for, the decision making principles for treatment and interventions

(1) A person who has authority to make a decision or exercise a power in respect of the care or treatment of a patient under this Chapter or Chapter 4 must give proper consideration to the decision making principles for treatment and interventions in the making of that decision or exercise of that power.

(2) The chief psychiatrist may prepare guidelines to assist a person who has authority to make a decision or exercise a power in respect of the care or treatment of a patient under this Chapter or Chapter 4 to make decisions in accordance with subsection (1).

(3) Before making guidelines under subsection (2), the chief psychiatrist must consult with—

(a) consumers; and

(b) carers; and

(c) the Mental Health and Wellbeing Commission; and

(d) the mental health and wellbeing workforce; and

(e) any other person or body the chief psychiatrist considers must be consulted.

(4) The chief psychiatrist must ensure that—

(a) designated mental health services are given reasonable notice of any guidelines prepared under subsection (2) before the guidelines come into operation; and

(b) the guidelines are published on the Department's website as soon as practicable after they come into operation.

(5) If a person who has authority to make a decision or exercise a power in respect of the care or treatment of a patient under this Chapter or Chapter 4 makes a decision or exercises a power of that kind in accordance with any relevant guidelines prepared under subsection (2), the person is taken to have given proper consideration to the decision making principles for treatment and interventions.

(6) For the avoidance of doubt, the Mental Health Tribunal is not required to comply with this section.

Part 3.2—Capacity and informed consent

85 Presumption that person has capacity to give informed consent

(1) Before treatment or medical treatment is given to a person under this Act, the person's informed consent must be sought.

(2) The person seeking the informed consent must presume that the person whose consent is sought has the capacity to give it.

(3) However, the person's informed consent does not have to be sought if the person seeking consent reasonably considers that the person does not have capacity to give informed consent.

86 When does a person give informed consent?

(1) Informed consent may be given by a person if the person—

(a) has capacity to give informed consent; and

(b) has been given adequate information to enable the person to make an informed decision; and

(c) has been given a reasonable opportunity to decide whether or not to consent; and

(d) has given consent freely without undue pressure or coercion by any other person; and

(e) has not withdrawn their consent or indicated their intention to withdraw their consent.

(2) A person has been given adequate information to make an informed decision if the person has been given—

(a) an explanation of the proposed treatment or medical treatment including—

(i) the purpose of the treatment or medical treatment; and

(ii) the type, method and likely duration of the treatment or medical treatment; and

(b) 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 of the treatment or medical treatment; and

(c) an explanation of any beneficial alternative treatments that are reasonable available, including any information about the advantages and disadvantages of these alternatives; and

(d) answers to any relevant questions that the person has asked; and

(e) an explanation of the advantages and disadvantages of not undergoing the treatment;

(f) any other relevant information that is likely to influence the person's decision; and

(g) in the case of proposed treatment, a statement of rights relevant to the person's situation.

(3) A person has been given a reasonable opportunity to make a decision if, in the circumstances, the person has been given—

(a) a reasonable period of time in which to consider the matters involved in the decision; and

(b) a reasonable opportunity to discuss these matters with the registered medical practitioner or other health practitioner who is proposing the treatment or medical treatment; and

(c) the appropriate supports to make the decision; and

(d) a reasonable opportunity to obtain any other advice or assistance in relation to the decision.

(4) Without limiting subsections (1), (2) or (3), for the purposes of medical treatment that is given under this Act, a person may give informed consent by instructional directive.

See also section 17.

87 When does a person have capacity to give informed consent?

(1) A person has capacity to give informed consent if the person—

(a) is able to understand the information they are given for the purpose of deciding whether or not to consent; and

(b) is able to remember that information; and

(c) is able to use or weigh that information in deciding whether or not to consent; and

(d) is able to communicate the decision the person makes by speech, gestures or any other means.

(2) The following must be considered in deciding whether a person has capacity to give informed consent—

(a) the person's capacity to give informed consent is specific to the particular decision that the person is making;

(b) the person's capacity to give informed consent may change over time;

(c) it should not be assumed that the person does not have capacity to give informed consent only because of the person's age, appearance, disability, condition or behaviour;

(d) it should not be assumed that the person does not have capacity to give informed consent only because the person makes a decision that could be considered unwise;

(e) whether the person may be enabled to give informed consent by providing the person with appropriate supports.

(3) In assessing whether a person has capacity to give informed consent, the person carrying out the assessment must take all reasonable steps to ensure that—

(a) the assessment is carried out at a time, and in an environment, that the capacity of the person being assessed can be determined most accurately; and

(b) the person being assessed is provided with appropriate supports to enable the person to give informed consent.

Part 3.3—Treatment

88 Patients to be treated for mental illness

A patient is to be given treatment for their mental illness in accordance with this Act.

89 When a patient does not have capacity to give informed consent or does not give informed consent to treatment

(a) a patient (other than an assessment patient or a court assessment patient)—

(i) does not have capacity to give informed consent to treatment proposed by an authorised psychiatrist; or

(ii) has capacity to give informed consent but does not give informed consent to treatment proposed by an authorised psychiatrist; and

(b) the treatment proposed by the authorised psychiatrist is not electroconvulsive treatment or neurosurgery for mental illness.

See Parts 3.5 and 3.6 for relevant provisions regarding electroconvulsive treatment and neurosurgery for mental illness.

(2) For the purposes of determining whether this section applies to a person, it is only the patient not giving informed consent that is relevant and not the refusal to give consent of any other person or body authorised by law to make decisions for the patient.

(3) An authorised psychiatrist may make a treatment decision for a patient under this section if the authorised psychiatrist is satisfied that—

(a) the treatment is clinically appropriate; and

(b) there is no less restrictive way for the patient to be treated other than the treatment proposed by the authorised psychiatrist.

(4) In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist, to the extent that is reasonable in the circumstances, must have regard to the following—

(a) the patient's views and preferences regarding the treatment and the reasons for those views and preferences including any recovery outcomes the patient would like to achieve;

(b) any beneficial alternative treatment that is reasonably available;

(c) the views and preferences of the patient expressed in the patient's advance statement of preferences;

S. 89(4)(d) amended by No. 44/2025 s. 55.

(d) the views and preferences of the patient expressed by the patient's nominated support person;

(e) the views of the patient's guardian;

(f) if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship, the views of the patient's carer;

(g) if the patient is under the age of 16 years, the views of the patient's parent;

(h) if the DFFH Secretary has parental responsibility for the patient under a relevant child protection order, the views of the DFFH Secretary;

(i) the likely consequences for the patient if the treatment is not administered;

(j) the likely consequences if the treatment is provided to the patient without the patient's consent;

(k) any second psychiatric opinion that has been given to the authorised psychiatrist.

90 Circumstances in which patient's advance statement of preferences may be overridden by an authorised psychiatrist

(1) An authorised psychiatrist may only make a treatment decision for a patient under section 89(3) that is not in accordance with the preferred treatment specified in the patient's advance statement of preference if the authorised psychiatrist is satisfied that the patient's preferred treatment—

(a) is not clinically appropriate; or

(b) 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.

(2) If an authorised psychiatrist decides to override a patient's advance statement of preferences under this section, the authorised psychiatrist, as soon as practicable but no later than within 10 business days after the decision is made, must provide the patient and the patient's nominated support person with written reasons for the authorised psychiatrist's decision.

(3) In addition, the authorised psychiatrist must orally inform the patient of the decision and provide reasons as soon as practicable.

Part 3.4—Medical treatment

91 Giving informed consent to medical treatment

If a patient gives informed consent to medical treatment, the medical treatment may be given to the patient.

Patient is defined in section 3 to mean an assessment patient, a court assessment patient, a temporary treatment patient, a treatment patient, a security patient or a forensic patient.

92 Who may consent to medical treatment if patient does not have capacity to give informed consent?

(1) If a patient who is of or over the age of 18 years does not have capacity to give informed consent to medical treatment, the medical treatment may be given to the patient with the consent of the first of the following persons who is reasonably available, willing and able to make a decision about the proposed medical treatment—

(a) the patient's medical treatment decision maker;

(b) a person appointed by VCAT to make decisions about the proposed medical treatment;

(c) 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;

(d) subject to section 93, the authorised psychiatrist.

(2) If a patient who is under the age of 18 years does not have capacity to give informed consent to medical treatment, the medical treatment may be given to the patient with the consent of—

(a) 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

(b) if a person referred to in paragraph (a) is not reasonably available or is not willing and able to make a decision about the proposed medical treatment, subject to section 93, the authorised psychiatrist.

See section 53 of the Medical Treatment Planning and Decisions Act 2016 in respect of medical treatment in an emergency.

93 Matters authorised psychiatrist must consider in consenting to medical treatment for a patient

(1) An authorised psychiatrist may consent to medical treatment being given to a patient who does not have capacity to give informed consent if the authorised psychiatrist is satisfied that the medical treatment would benefit the patient.

(2) In deciding whether the medical treatment would benefit the patient, the authorised psychiatrist, to the extent that is reasonable in the circumstances, must have regard to the following—

(a) the patient's views and preferences regarding the medical treatment and the reasons for those views and preferences including any recovery outcomes the patient would like to achieve;

(b) any beneficial alternative medical treatment that is reasonably available;

(c) any relevant values directive given by the patient;

S. 93(2)(d) amended by No. 44/2025 s. 56.

(d) the views and preferences of the patient expressed by the patient's nominated support person;

(e) the views of the patient's guardian;

(f) if the authorised psychiatrist is satisfied that decision will directly affect the carer and the care relationship, the views of the patient's carer;

(g) if the patient is under the age of 16 years, the views of the patient's parent;

(h) if the DFFH Secretary has parental responsibility for the patient under a relevant child protection order, the views of that Secretary;

(i) if the medical treatment is likely to remedy the condition or lessen the symptoms of the condition;

(j) the likely consequences for the patient if the medical treatment is not administered;

(k) any second opinion of a registered medical practitioner that has been given to the authorised psychiatrist.

(3) 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 give consent to the medical treatment.

(4) Despite subsection (3), the authorised psychiatrist may give consent to the medical treatment if the delay in giving the medical treatment to the patient could result in serious harm to, or deterioration in, the mental or physical health of the patient.

Part 3.5—Electroconvulsive treatment

Division 1—General

94 Electroconvulsive treatment must not be performed other than in accordance with this Part

Electroconvulsive treatment must not be performed on a person other than in accordance with this Part.

95 What is a course of electroconvulsive treatment?

For the purposes of this Part, a course of electroconvulsive treatment means treatment specified by the Mental Health Tribunal in an order under this Part that is—

(a) up to 12 electroconvulsive treatments; and

(b) performed within a period of time that does not exceed 6 months.