The Victorian Andrews Government is re-writing the mental health legislation as part of the mental health royal commission reforms.
The royal commission recommended the new legislation should promote good mental health and wellbeing, reset the mental health and wellbeing system’s legal foundations and support the delivery of services that are responsive to the needs and preferences of Victorians.
The government has started community consultation for the development of the new Mental Health and Wellbeing Act which will replace the current Mental Health Act 2014.
It is calling for submissions commenting on topics raised in its update and engagement paper available on the Engage Victoria website. The submission deadline has been extended to 1 August 2021. ANMF will make a submission on behalf of our members.
Accordingly, ANMF is holding three workshops in July to provide members with an understanding of the proposed changes and an opportunity to provide feedback to the Department of Health representatives. (These workshops are fully booked.)
Workshop participants include mental health nurses, nurses from a wide variety of clinical specialties, midwives and personal care workers who also inform the ANMF (Vic Branch) submission to the legislative consultation paper. This feedback will be in addition to the work of the ANMF Royal Commission Working Group, comprising ANMF delegates from mental health services across regional and metropolitan Victorian.
ANMF (Vic Branch) Assistant Secretary Madeleine Harradence, who chairs the working group, said ‘Mental health nurses inherently know that rights of consumers are very important, however it is critical that we also acknowledge nurses’ rights and we get the balance right’.
‘Nurses, midwives and personal care workers know their consumers, patients and residents are falling through the gaps in our the mental health system.
‘Our members’ holistic perspective will be critical to getting this right and ensuring that mental and physical health are viewed as equally important.’
The current legislation
The mental health royal commission final report said the current Mental Health Act 2014 was ‘not fit for purpose’.
The Commissioners said a risk management approach often influenced the content and application of mental health laws in the ‘Victoria’s under-resourced and crisis-driven system’.
They found the ‘aspirations’ of the current Act had not been realised. This included ‘embedding concepts such as supported decision making and recovery-orientated practice’.
The new legislation
The Andrews Government says the new Act will be in place mid-2022.
This new legislation, according to the royal commission recommendations, should go ‘beyond permitting compulsory treatment’ and ‘reflect the views, values and preferences of people living with mental illness or psychological distress, families, carers and supporters, promote human rights, enable strong governance, and communicate how the intentions behind the legislation should apply in practice’.
The royal commission said the purpose of the new Act was ‘to promote mental health and wellbeing in Victoria’.
The successful implementation of the other royal commission recommendations, including ongoing workforce education and training, will be critical to legislative reform.
Victorian mental health royal commission legislative recommendations
A new Mental Health and Wellbeing Act
The Royal Commission recommended that the Victorian Government repeal the Mental Health Act 2014 (Vic) and enact a new Mental Health and Wellbeing Act, preferably by the end of 2021 and no later than mid-2022.
The new Act should have three purposes:
- to promote good mental health and wellbeing;
- to reset the legislative foundations underpinning the mental health and wellbeing system
- to support the delivery of services that are responsive to the needs and preferences of Victorians.
The government should also ensure the Mental Health and Wellbeing Act:
- includes new objectives and mental health principles, with its primary objective to achieve the highest attainable standard of mental health and wellbeing for the people of Victoria by promoting conditions in which people can experience good mental health and wellbeing; reducing inequities in access to, and the delivery of, mental health and wellbeing services; and providing a diverse range of comprehensive, safe and high-quality mental health and wellbeing services.
clarifies the roles, responsibilities and governance arrangements of the new mental health and wellbeing system
- establishes the bodies and roles referred to in other recommendations, including the Mental Health and Wellbeing Commission (refer to recommendation 44), the Chief Officer for Mental Health and Wellbeing (refer to recommendation 45(1)) and Regional Mental Health and Wellbeing Boards (refer to recommendation 4(2))
- strengthens accountability mechanisms and monitoring arrangements for service delivery
- specifies measures to reduce rates and negative impacts of compulsory assessment and treatment, seclusion and restraint
- simplifies and clarifies the statutory provisions relating to compulsory assessment and treatment such that they are no longer the defining feature of Victoria’s mental health laws
- specifies the ways in which information about mental health and wellbeing may be collected and used.
Future review of mental health laws
The Royal Commission recommended that the Victorian Government:
- commission an independent review of Victoria’s mental health laws five to seven years after the enactment of the Mental Health and Wellbeing Act.
- co-design terms of reference for the review that focus on ensuring mental health laws remain contemporary, effective and responsive to the needs and preferences of consumers, families, carers and supporters.
- as part of this review, consider the role and functions of the Mental Health Tribunal and Chief Psychiatrist to ensure they remain appropriate.