The new Mental Health and Wellbeing Act 2022 (the Act) will commence 1 September 2023. On 17 July 2024 the Department of Health released a fact sheet on frequently asked questions regarding the new Act. Some of the major changes (found on the Department’s website) are summarised below:
Foundations for a new mental health system:
The new Act resets the legislative foundations of Victoria’s mental health and wellbeing system. It establishes key entities in the new system architecture and includes broader regulation to support a safer, more inclusive system. The definition of Mental Health and Wellbeing Service Provider includes a wider range of service providers.
Aboriginal Social and Emotional Wellbeing:
The Act includes a Statement of Recognition of Aboriginal people and acknowledgement of the Treaty process. The Statement enshrines commitments to Aboriginal self-determination in Victorian Government health statutes for the first time. A key objective of the Act is the provision of culturally safe and responsive services to Aboriginal and Torres Strait Islander people to support and strengthen connection to culture, family, community and Country.
The cultural safety principle requires mental health and wellbeing service providers to provide culturally safe and responsive mental health and wellbeing treatment and care to Aboriginal and Torres Strait Islander peoples that is appropriate to, and consistent with, their cultural and spiritual beliefs and practices.
The information sharing principles set expectations that the health and personal information of Aboriginal and Torres Strait Islander peoples is to be treated in a way that is culturally safe, promotes self-determination and acknowledges connections to family, kin and community.
Rights-based objectives and principles:
New objectives aim to achieve the highest attainable standard of mental health and wellbeing for Victorians. New rights-based mental health principles prioritise the values, preferences and views of consumers, families, carers and supporters. Principles support the Royal Commission’s ambition of reducing the use of compulsory treatment and restrictive interventions.
The Act sets a higher standard of accountability to embed the principles into daily practice. For the first time, mental health legislation includes a diversity of care principle, a least restrictive care principle and a principle to support the health, wellbeing and autonomy of children and young people.
Mental Health and Wellbeing Providers must give proper consideration to the principles when making decisions and must make all reasonable efforts to comply with the principles when exercising a function under the Act. Complaints can be made to the new Mental Health and Wellbeing Commission if a service provider fails to comply with these obligations. Mental health and wellbeing service providers are required to report on how they are responding to the mental health principles in annual reports.
Lived experience:
The new Act puts people with lived and living experience of mental illness and psychological distress, and their families, carers and supporters at the centre of the mental health and wellbeing system. It does this through the inclusion of new rights-based objectives and principles and designated lived experience roles at the highest levels of new and existing governance and oversight entities. This includes designated lived experience Commissioner roles within the new Mental Health and Wellbeing Commission and various Boards.
The lived experience principle recognises the importance and value of the contribution of people with lived experience as leaders and partners in the mental health and wellbeing system.
Supporting individuals:
New measures promote supported decision making and the agency and autonomy of people living with mental illness. This includes the provision of appropriate supports to help people understand information, communicate and make decisions. All reasonable efforts must be made to provide supports any time the Act requires communication with a consumer or their family members, carers and supporters.
Advance statements of preference (formerly advance statement) may now include a broader range of preferences relating to treatment, care and support needs.
Designated mental health services are now obliged to make all reasonable efforts to give effect to a patient’s advance statement of preferences and/or to support a nominated support person. Written reasons must now be provided whenever a treatment preference outlined in an advance statement of preference is overridden.
The Act clarifies the role of the nominated support person (formerly nominated person) to focus on advocating for the views and preferences of the patient and supporting them to communicate and make their own decisions.
Provisions related to second psychiatric opinions are comparable to those of the Mental Health Act 2014, except for a new requirement that a patient is automatically provided with written reasons when recommendations of a second psychiatric opinion are not adopted. The Act establishes a new opt out model of non-legal mental health advocacy. Service providers must assist mental health advocates in undertaking their role.
Treatment and care:
Compulsory assessment criteria and compulsory treatment criteria are unchanged from the Mental Health Act 2014. An independent review of compulsory treatment criteria and the alignment of decision making laws will make recommendations to government to inform future amending legislation.
Provisions related to the use of restrictive interventions are comparable to those of the Mental Health Act 2014, however with the addition of:
- obligation on providers to aim to reduce the use of restrictive interventions with the eventual aim of eliminating their use
- requirements to document alternatives tried or considered
- obligation to review the use of restrictive interventions and to offer an opportunity for the person subject to these interventions an opportunity to participate in the review.
Provisions for the making, variation and revocation and operation of assessment orders, court assessment orders, temporary treatment orders and treatment orders are comparable to those of the Mental Health Act 2014, however, new decision making principles for treatment and interventions must be given proper consideration in the application for and making of these orders.
The Act introduces regulation of chemical restraint as a type of restrictive intervention. Chemical restraint is defined as 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.
Provisions related to treatment, medical treatment and neurosurgery are comparable to those of the Mental Health Act 2014. The maximum duration of a community treatment orders has been reduced from 12 months to 6 months.
Provisions related to Electroconvulsive treatment (ECT) are comparable to those of the Mental Health Act 2014, although with some drafting changes to clarify the provisions.
Provisions related to the presumption of capacity and informed consent are comparable to those of the Mental Health Act 2014.
New roles and entities:
The Act establishes new roles and entities including:
- The Chief Officer for Mental Health and Wellbeing (reporting to the Secretary of the Department of Health with role and functions similar to the Secretary)
- Regional Mental Health and Wellbeing Boards to provide advice to the Minister on the commissioning of mental health and wellbeing services in their regions
- State-wide and Regional Multiagency Panels to bring together service providers and support collaboration and accountability for those requiring ongoing intensive, treatment care and support from multiple services
- A Mental Health Workforce Safety and Wellbeing Committee to provide advice to the Department on the prevention of risks to health, safety and wellbeing of the workforce and approaches to monitoring and responding to these risks.
- Mental Health and Wellbeing Commission: The Act establishes Victoria’s new Mental Health and Wellbeing Commission. The independent statutory authority commences on 1 September 2023. It will play a key role in system-wide oversight of quality and safety and monitor the achievement of the Royal Commission’s goals. The Commission has designated roles for Commissioners with lived or living experience of mental illness or psychological distress and with experience as a family member, carer or supporter. The new Commission will incorporate the existing complaints function of the Mental Health Complaints Commissioner and have a suite of broader powers, including an ‘own motion’ investigation power. Changes under the new Act:
- allow complaints from families, carers and supporters in relation to their experiences in these roles
- align processes and powers with those available to the Health Complaints Commissioners under the Health Complaints Act 2016
- allow for complaints about a failure to comply with obligations in relation to principles.
- Youth Mental Health and Wellbeing Victoria: Youth Mental Health and Wellbeing Victoria (YMHWV) is established as a new entity to:
- provide system leadership and strategic advice, giving agency to the voices of young people with lived experience in response to a crisis in youth mental health; and
- enable a flexible model of delivery and oversight for integrated mental health and wellbeing services for young people by declared operators in specific areas.
- Chief Psychiatrist: The role, functions and powers of the Chief Psychiatrist are comparable to that under the Mental Health Act 2014 however:
- the Chief Psychiatrist’s jurisdiction is defined to include designated mental health services; mental health and wellbeing service providers that provide mental health and wellbeing services in custodial settings; and any other prescribed entity or class of entity
- the new Act no longer provides for separate clinical practice audits by the Chief Psychiatrist. Instead, the clinical review power will have broader application, covering what would have been subject of a clinical practice audit under the Mental Health Act 2014.
- a new role to oversight the use of chemical restraint.
Provisions related to the appointment of Authorised Psychiatrists and delegation of Authorised Psychiatrist powers are comparable to those of the Mental Health Act 2014.
- Mental Health Tribunal: The Act continues the functions of the Mental Health Tribunal which include:
- determining whether the criteria for compulsory mental health treatment as set out in the Act apply and making orders if the criteria are met
- hearing applications for revocation of orders
- hearing and determining applications for certain mental health treatments, including ECT and neurosurgery.
The provisions regarding the Mental Health Tribunal are comparable to those of the Mental Health Act 2014 with minor changes to allow for single member divisions for unopposed adjournment hearings and leave to withdraw proceedings applications.
Information sharing:
New principles clarify the purpose and expectations in relation to information sharing. The new provisions in relation to information sharing:
- reflect the new service system by allowing information sharing with specified emergency service providers in an emergency
- specify who can access information from the current electronic health information system and the scope of such access
- enable a consumer to contribute a statement on their health information where a request to correct information has been made under the Freedom of Information Act 1982 or the relevant Health Privacy Principle and the provider has refused to make the correction
- oblige mental health and wellbeing service providers to share information with family, carers or supporters at defined points of care (such as admission or discharge) when a consumer has consented to this disclosure.
Under the new Act information must not be disclosed if there is a risk that a person may be subject to family violence or other serious harm. In other respects, provisions regarding the collection, use and disclosure of information are comparable to those of the Mental Health Act 2014.
Health-led response to mental health crises:
New provisions introduced to establish the foundations of a health led response to mental health crises, include:
- new principles that specify powers must be led by a health professional and used in the least restrictive way possible so far as is reasonably practicable
- updated language to reflect a health led approach to mental health emergency
- a capacity to increase the role of health professionals in responding to mental health crises in the community
- new discretions to allow for transfer of care and control between authorised persons and release of a person from care
Support and education:
Western Health has an Implementation Lead employed, who is working closely with the Department of Health to develop consistent education packages for the new Act. These packages are expected to be implemented throughout August.
Additionally, the Department of Health is developing a series of e-learning modules to introduce the workforce to the new Act. This includes key changes from the Mental Health Act 2014. The introduction of training modules will be phased over time and include topics such as the new rights-based principles, protection of consumer and carer rights, and the role of key oversight bodies.