Is the new Mental Health and Wellbeing Act key to a stronger mental health system for Victoria?
This article was co-authored by Scott Walker, Paralegal.
On 2 March 2021, the Victorian Government released the final report of the Royal Commission into Victoria’s Mental Health System. The Commission highlighted the strains on the mental health system and found that people obtaining mental health services ‘are not treated with dignity or respect and are not involved in making decisions about their own treatment, care and support’. It also found ‘an excessive use of restrictive practices and compulsory treatment’.
Three key related recommendations of the Commission were:
- a new Mental Health and Wellbeing Act (MHWA) by no later than mid-2022 to replace the current Mental Health Act 2014 (Vic) (MHA14);
- reduce the use of seclusion and restraint in mental healthcare, and eliminate within 10 years; and
- ensure that compulsory treatment is used only as a last resort.
The Old Act
The MHA14 was seen by some as a major overhaul of the previous system by seeking to strengthen oversight of compulsory treatment. Yet, the Commission found that the MHA14’s narrow focus on compulsory treatment contributed to the dominance of the biomedical model of care, which focusses on perceived ‘deficits’ to be fixed and managed by treatment intervention. The Commission also identified a ‘consistent theme’ of the aspirations of MHA14) not being realised, despite the extensive consultation and best efforts of many in drafting the legislation.
In June 2021, the Victorian Government opened its public consultation on the MHWA. The engagement paper seeks to promote supported decision-making, which was a key part of the Commission’s recommendations for a more human rights-based mental health system. The engagement paper also proposes a redesigned compulsory treatment system, with more onerous requirements for compulsory treatment orders, but greater flexibility as to who is authorised to make 28-day temporary treatment orders. Under the MHA14, the following criteria must be met to make a compulsory treatment order:
- the person has a mental illness;
- because the person has mental illness, they need immediate treatment to prevent:
- serious deterioration in the person’s mental health of physical health; or
- serious harm to another person;
- the immediate treatment will be provided if an order is made; and
- there is no less restrictive way to enable the person to receive that immediate treatment.
The proposed changes to these criteria in the MHWA, are:
- replacing ‘preventing serious deterioration in the person’s mental or physical health’ with ‘preventing the person experiencing serious distress’;
- requiring that the harm being prevented must be both serious and imminent; and
- requiring that all other treatment and support options have first been considered and eliminated.
In making these changes, the MHWA will seek to recognise the dignity of risk of people with mental illness consistently with the Commission’s view for systemic change in the mental health system.
Public consultation on the MHWA will close on 1 August 2021. An analysis will then be undertaken to inform the development of the MHWA.
 Royal Commission into Victoria’s Mental Health System (Final Report, February 2021) summary and recommendations, 18.
 Ibid, recommendation 42.
 Ibid, recommendation 54.
 Ibid, recommendation 55.
 Royal Commission into Victoria’s Mental Health System (Final Report, February 2021) vol 4, 17.
 Ibid 21.
 Ibid 23.