What happens if you breach the mental health Act

If you are assisting a client living with mental illness, there may be any number of laws to consider, depending on the nature of their legal issue. These may include the Victorian Charter of Human Rights and Responsibilities 2006 (Vic), the Guardianship and Administration Act 2019 (Vic) and those dealing with mental impairment and criminal responsibility.

However this section focuses on the treatment of mental illness, particularly compulsory (involuntary) treatment, and related issues covered by the Mental Health Act 2014 (Vic) .

About the Mental Health Act

The Mental Health Act 2014 (Vic) (the Act), is the key legislation covering mental health treatment. It replaced the Mental Health Act 1986 (Vic), and was the culmination of many years of development and consultation by the Victorian government.

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

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

Focus of the Act

The Mental Health Act came into effect on 1 July 2014. Whilst it authorises compulsory treatment in certain circumstances, the Act is intended to promote recovery-oriented practice , minimise compulsory treatment and protect and support the rights of people living with mental illness. These include rights to:

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

Key elements of the Act

Mental health principles and rights

A core part of the framework is the inclusion of mental health principles in the Act, which a mental health service provider must have regard to when providing mental health services (s. 11(2), and any person performing any duty or function or exercising any power under the Act must have regard to (s. 11(3)). The principles include the provision of mental health services in the least restrictive way possible, promoting recovery and the best possible therapeutic outcomes and participation and support in decision-making.

The degree to which this section can be relied upon as a basis for any legal action is yet to be tested. Reflecting a shift in philosophy, the principles contain a recognition that people should be entitled to make decisions that to others may appear to involve a ‘degree of risk’.

Alongside the mental health principles are specific rights, such as to private communication, advance statements, having nominated persons, second psychiatric opinions and information about rights and treatment, through a statement of rights.

People receiving mental health services have rights to privacy and confidentiality, but this requires careful balancing with the increased recognition of the role of support people (such as family members and carers) to support decision-making. Section 346 deals with disclosure of health information.

Presumption of capacity

The Act sets out clearly that a person is deemed to have capacity to give informed consent if the person understands, is able to remember and use information relevant to the decision and is able to communicate their decision (s. 68(1)). The Act sets out principles to guide the determination of capacity in s. 68(2). A person on a treatment order can still be given treatment against their wishes, even if they have capacity, if certain criteria are met (s. 71).

Section 69 of the Act, states that a person gives informed consent to treatment or medical treatment under the Act if they:

• have the capacity to give informed consent to the treatment or medical treatment proposed
• have been given adequate information to enable the person to make an informed decision
• have been given a reasonable opportunity to make the decision
• have given consent freely without undue pressure or coercion by any other person, and
• have not withdrawn consent or indicated any intention to withdraw consent.

Section 69(2) further defines when a person has been given adequate information to make an informed decision.

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

Mental Health Tribunal

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

Mental Health Complaints Commissioner

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

Assessment and treatment orders

Rights of people receiving treatment for mental illness

Additional resources

Independent Mental Health Advocacy (IMHA) supports people who are receiving, or at risk of receiving, compulsory mental health treatment to make decisions and have as much say as possible about their assessment, treatment and recovery.

This service is an integral component in realising the reforms and vision of the Mental Health Act 2014.

IMHA advocates are based in Melbourne, Geelong, Bendigo and Dandenong, but support people across Victoria. The service is independent, free and confidential.

See also the Department of Health website for:

For information about mental health treatment and services see:

As a person with a mental illness in Victoria, you are protected by the same laws that protect everyone else within the Victorian healthcare system. The Health Records Act relates to the privacy and protection of your health information. The Carer’s Recognition Act acknowledges the role that carers play in treatment and recovery. However, there are some situations where mental health treatment becomes compulsory. The Mental Health Act 2014 is the law governing compulsory mental health treatment in Victoria. Mental health professionals have to abide by and be guided by these laws.The Mental Health Act 2014 provides specifically for the mental health assessment, detention and compulsory treatment of people with severe mental illness. It makes sure that compulsory treatment is only used where necessary to prevent serious harm to the person or to others.

The Mental Health Act 2014 requires every compulsory patient must be given a written statement of their patient rights as soon as they become a compulsory patient or receive electroconvulsive treatment or neurosurgery for mental illness under the Act. A compulsory patient is a person on an Assessment Order, a Temporary Treatment Orderor Treatment Order.If they need help to exercise those rights, they can ask someone of their choice to help them – for example: a staff member, case manager, nominated person, friend, relative, advocate, lawyer or doctor.

A mental health patient statement of rights includes information about your rights to :

• communicate lawfully
• seek a second psychiatric opinion about whether you should be on an order and to review treatment under that order
• make an advance statement
• apply to the Mental Health Tribunal at any time to revoke a compulsory treatment order
• make a decision about whether to give informed consent for electroconvulsive treatment
• choose a ‘nominated person’ to support you if you must have compulsory treatment
• make a complaint to the Mental Health Complaints Commissioner (this is a free service)
• be legally represented and be supported by a carer, family member or friend at a hearing of the Mental Health Tribunal
• seek help from community visitors.

Compulsory mental health treatment

If a doctor diagnoses you with a particular mental illness or if you have a mental illness escalate . and as a result, you might hurt yourself or others, and you refuse treatment, the doctor can force you to be referred for another mental health assessment or for treatment.

Medical practitioners in Victoria have the power to force a person to be assessed and treated for a mental illness if they believe it is needed in order to prevent serious deterioration in the person’s mental or physical health, or serious harm to the person or another person.

Mental health assessment and treatment orders

Mental health assessment and treatment orders are the steps put in place to make sure that compulsory mental health treatment is used only as a last resort.

Assessment orders can only be made by a registered doctor or mental health practitioner (for example, a registered nurse, registered occupational therapist, registered psychologist or social worker employed or engaged by a designated mental health service).

An assessment order allows a psychiatrist to examine you, even if you do not want to be assessed, to decide if you have a mental illness and need treatment.

If a mental health assessment finds that treatment is needed, a treatment order will be required. You must fit all of the following criteria before any treatment order (temporary or longer) can be made: 

• you have a mental illness
• because you have a mental illness, you need immediate mental health treatment to stop serious deterioration in your mental or physical health or to stop serious harm to you or another person
• you will get immediate treatment if you are made subject to a Temporary Treatment Order or Treatment Order and
• there is no less restrictive way for you to get immediate treatment.

If all the above reasons apply to you, the psychiatrist will make aTemporary Treatment Order and you must remain a compulsory patient. A Temporary Treatment Order can only last for a maximum of  28 days. A Temporary Treatment Order can authorise compulsory treatment as an inpatient or in the community.

Before the 28 days is up, the Mental Health Tribunal will conduct a hearing. If the tribunal is satisfied that the treatment criteria apply, it may make a Treatment Order (Inpatient or Community) to authorise ongoing compulsory mental health treatment.

The duration of a Treatment Order is up to six months for an In-patient Treatment Order, up to 12 months for a Community Treatment Order or up to three months if the person is aged under 18.

Victoria Legal Aid

If you or someone you know needs legal advice,Victoria Legal Aid can provide free legal assistance. If you need a lawyer to represent you in court, you can apply for a grant for free legal assistance from Victoria Legal Aid. If your grant application is not successful, you will probably need to pay a lawyer to represent you.

Call 1300 792 387 between 8:15 am to 5:15 pm, Monday to Friday for free advice.

The Law Institute of Victoria – Referral Service

Mental health carers and the law

The Mental Health Act 2014 recognises and supports the important role of carers and other key support people that care for people with mental illness.

The Act says that as a carer, you should be informed of events that directly affect you and your care relationship with the patient.

Carers are also acknowledged under the Carer’s Recognition Act 2012. The principles of the Act apply to public and publicly-funded healthcare services.

If you think your rights as a carer have been breached, you should first discuss your complaint directly with the healthcare professional involved. Read more on the Making a complaint about a mental health service page.

Privacy and confidentiality and mental health

There are laws that protect the privacy and confidentiality of your communication with healthcare professionals, as well as your healthcare records.

The Mental Health Act 2014 prevents the disclosure of patient’s health information except in prescribed situations where certain requirements are met. The Health Records Act 2001 regulates the collection and handling of health information and protects the confidentiality of your healthcare information. For example, there are strict guidelines on access to your healthcare information. If you want your carer to be able to access your healthcare records, you need to give your written consent to authorise their access.

See also the Mental Health Act 2014 handbook .

Where to get help