Mental health law ripe for reform

This article was produced by the Commission and appeared in the February 2008 issue of the Law Institute Journal. 


Victorian Law Reform Chairperson and the first president of the Mental Health Review Board, Professor Neil Rees, delivered the keynote address at the December 2007 conference marking the board’s 20th anniversary. ‘Learning from the Past, Looking to the Future: is Victorian Mental Health Law Ripe for Reform?’ is available on the website: This is a summary of that paper.

It has been almost 30 years since the policy underpinning the current Mental Health Act was devised and 20 years since the legislation was enacted. Since 1987 the Act has been amended on 52 separate occasions.

The Act was designed to operate in a different era: one in which reasonably long stays in ‘stand alone’ psychiatric hospital were quite common for people with a serious mental illness. Today we prefer community care and short stays in the psychiatric wards of major hospitals when absolutely necessary.

There are seven different areas, some of them overlapping, where mental health law may be ripe for reform.

1. Advanced directives

Under the Medical Treatment Act 1988 a person may give a written direction, known as a Refusal of Treatment Certificate, to refuse treatment for a medical condition which the person has when making the direction. It is unclear whether direction of this nature could be made by a person with a mental illness, when well, to limit or direct the types of treatment that he or she receives when unwell at some time in the future. Under the Mental Health Act the treating psychiatrist is empowered to make treatment decisions on behalf of involuntary patients. This power may override a Refusal of Treatment Certificate.

There is mounting support for laws that permit people with a mental illness to make advanced directives that influence the treatment they receive when they cannot consent. Considerable attention to detail will be required if any legislative scheme of psychiatric advance directives is to operate successfully.

2. Mental health and guardianship laws

Guardianship does not appear to have been used in Victoria as a legal means for compulsory psychiatric treatment and placement, either in the community or in a hospital. Perhaps it is time to consider whether guardianship should be used to direct where people with a serious mental illness should live, and also as a way of providing substitute decision making about psychiatric treatment.

3. Information for carers

The current Victorian Mental Health Act contains extensive secrecy provisions preventing the disclosure of information about people who have received psychiatric services. Recent changes to the NSW Mental Health Act mean a patient’s ‘primary carer’ is entitled to receive notification from the authorised psychiatrist of matters such as: admission to hospital; medication regimes; forthcoming magistrates and tribunal hearings; unauthorised absences from hospital; and discharge plans. Patients may nominate a particular person to be their ‘primary carer’ or someone who is not to be notified, but if no nomination is made there is a default list which includes a guardian, a spouse, and a close friend or relative.

4. Extended use of community treatment orders

The clinical and legal significance of community treatment orders has increased markedly over the past 20 years. They are now the major legal route for compulsory treatment. The current law permits community treatment orders to be made for 12 months. These orders require a person to accept treatment for mental illness, invariably medication, and may also specify where a person must live. A community treatment order may be extended before it has expired and there is no limit to the number of times it can be extended.

There may be grounds for suggesting that we should erect more stringent safeguards if a person has been on continuous community treatment orders for a lengthy period. Otherwise, we run the risk that compulsory community treatment may become, almost by default, the preferred means for delivering public mental health services.

5. Grounds for civil commitment

Two of the most contentious aspects of the current Victorian grounds for civil commitment are: the degree of dangerousness to self or others, and the apparent stipulation that a competent person who refuses treatment may become an involuntary patient.

In NSW the bar for the ‘dangerousness’ criterion is far higher than in Victoria. Its Act talks about ‘serious’ harm, which suggests that the dangerousness criterion is quite different to Victorian legislation.

There is also concern about competent people becoming involuntary patients because the use of the word ‘refused’ in the Act appears to allow the wishes of a competent person to be overridden.

6. Mental Health Review Board jurisdiction and hearing processes

The fundamental function of mental health review tribunals is to engage in timely, external review of decisions to deprive people of their liberty and of their freedom of bodily integrity.

The enactment of the Victorian Charter of Human Rights and Responsibilities Act may give us cause to reconsider the timeliness of external reviews, particularly because the charter speaks of ‘the right to liberty and security’.

It may also be useful to re-consider how the board should actually conduct its reviews – by way of traditional legal hearing, or otherwise – given the great strides that have been made in the field of therapeutic jurisprudence.

7. Research and planning body

It is strongly arguable that there is a need for a national body that gathers data, engages in long-term planning for the delivery of mental health services, researches existing delivery programs, and publishes its findings so policy makers can decide how to expend their resources and political leaders can determine which programs should be given funding priority.

These are all areas which have been debated before, but as our values change and new ideas emerge it’s timely to revisit them to ensure our legislation advances the wellbeing of people with a mental illness.

Date published: 
01 Feb 2008

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