Mental Health Act 2016

This Act may be cited as the Mental Health Act 2016.

This Act commences on a day to be fixed by proclamation.

The main objects of this Act are—

to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated; and

to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial; and

to protect the community if persons diverted from the criminal justice system may be at risk of harming others.

The main objects are to be achieved in a way that—

safeguards the rights of persons; and

is the least restrictive of the rights and liberties of a person who has a mental illness; and

promotes the recovery of a person who has a mental illness, and the person’s ability to live in the community, without the need for involuntary treatment and care.

For subsection (2)(b), a way is the least restrictive of the rights and liberties of a person who has a mental illness if the way adversely affects the person’s rights and liberties only to the extent required to protect the person’s safety and welfare or the safety of others.

This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

Nothing in this Act makes the State liable to be prosecuted for an offence.

The following principles apply to the administration of this Act in relation to a person who has, or may have, a mental illness—

Same human rights

• the right of all persons to the same basic human rights must be recognised and taken into account

• a person’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account

Matters to be considered in making decisions

• to the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting the person’s life, especially decisions about treatment and care

• to the greatest extent practicable, in making a decision about a person, the person’s views, wishes and preferences are to be taken into account

• a person is presumed to have capacity to make decisions about the person’s treatment and care and other matters under this Act

Support persons

• to the greatest extent practicable, family, carers and other support persons of a person who has a mental illness are to be involved in decisions about the person’s treatment and care, subject to the person’s right to privacy

Provision of support and information

• to the greatest extent practicable, a person is to be provided with necessary support and information to enable the person to exercise rights under this Act, including, for example, providing access to other persons to help the person express the person’s views, wishes and preferences

Achievement of maximum potential and self-reliance

• to the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance

Acknowledgement of needs

• a person’s age-related, gender-related, religious, communication and other special needs must be recognised and taken into account

• a person’s hearing, visual or speech impairment must be recognised and taken into account

Aboriginal people and Torres Strait Islanders

• the unique cultural, communication and other needs of Aboriginal people and Torres Strait Islanders must be recognised and taken into account

• Aboriginal people and Torres Strait Islanders should be provided with treatment, care and support in a way that recognises and is consistent with Aboriginal tradition or Island custom, mental health and social and emotional wellbeing, and is culturally appropriate and respectful

• to the extent practicable and appropriate in the circumstances, communication with Aboriginal people and Torres Strait Islanders is to be assisted by an interpreter

Persons from culturally and linguistically diverse backgrounds

• the unique cultural, communication and other needs of persons from culturally and linguistically diverse backgrounds must be recognised and taken into account

• services provided to persons from culturally and linguistically diverse backgrounds must have regard to the person’s cultural, religious and spiritual beliefs and practices

• to the extent practicable and appropriate in the circumstances, communication with persons from culturally and linguistically diverse backgrounds is to be assisted by an interpreter

Minors

• to the greatest extent practicable, a minor receiving treatment and care must have the minor’s best interests recognised and promoted, including, for example, by receiving treatment and care separately from adults if practicable and by having the minor’s specific needs, wellbeing and safety recognised and protected

Maintenance of supportive relationships and community participation

• to the greatest extent practicable, the importance of a person’s continued participation in community life and maintaining existing supportive relationships are to be taken into account, including, for example, by providing treatment in the community in which the person lives

Importance of recovery-oriented services and reduction of stigma

• the importance of recovery-oriented services and the reduction of stigma associated with mental illness must be recognised and taken into account

Provision of treatment and care

• treatment and care provided under this Act must be provided to a person who has a mental illness only if it is appropriate for promoting and maintaining the person’s health and wellbeing

Privacy and confidentiality

• a person’s right to privacy and confidentiality of information about the person must be recognised and taken into account.

The principles mentioned in subsection (2) apply to the administration of this Act in relation to each of the following (each a victim)—

a victim of an unlawful act;

a close relative of a victim of an unlawful act;

another individual who has suffered harm because of an unlawful act committed against a person mentioned in paragraph (a).

The principles are the following—

the physical, psychological and emotional harm caused to the victim by the unlawful act must be recognised with compassion;

the benefits of counselling, advice on the nature of proceedings under this Act and other support services to the recovery of the victim from the harm caused by the unlawful act must be recognised;

the benefits to the victim of being advised in a timely way of proceedings under this Act against a person in relation to the unlawful act must be recognised;

the benefits to the victim of the timely completion of proceedings against a person in relation to the unlawful act must be recognised;

the benefits to the victim of being advised in a timely way of a decision to allow a person to be treated in the community must be recognised;

the benefits to the victim of being given the opportunity to express the victim’s views on the impact of the unlawful act to decision-making entities under this Act must be recognised.

In performing a function or exercising a power under this Act, a person is to have regard to the principles mentioned in sections 5 and 6.

To the extent this Act applies to a person who has an intellectual disability—

sections 3 and 5 apply in relation to the person as if a reference in the sections to a person who has a mental illness were a reference to a person who has an intellectual disability; and

a reference in the Act to treatment and care of a person means a reference to care of the person; and

a reference in the Act to recovery of a person means a reference to the rehabilitation, and development of living skills, of the person.

The dictionary in schedule 3 defines particular words used in this Act.

Mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.

However, a person must not be considered to have a mental illness merely because—

the person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion; or

the person is a member of a particular racial group; or

the person has a particular economic or social status; or

the person has a particular sexual preference or sexual orientation; or

the person engages in sexual promiscuity; or

the person engages in immoral or indecent conduct; or

the person takes drugs or alcohol; or

the person has an intellectual disability; or

the person engages in antisocial behaviour or illegal behaviour; or

the person is or has been involved in family conflict; or

the person has previously been treated for a mental illness or been subject to involuntary assessment or treatment.

Subsection (2) does not prevent a person mentioned in the subsection having a mental illness.

Examples for subsection (3)—

1 A person may have a mental illness caused by taking drugs or alcohol.

2 A person may have a mental illness as well as an intellectual disability.

A decision that a person has a mental illness must be made in accordance with internationally accepted medical standards.

An involuntary patient means—

a person subject to any of the following—

an examination authority;

a recommendation for assessment;

a treatment authority;

a forensic order;

a treatment support order;

a judicial order; or

a person detained in an authorised mental health service or public sector health service facility under section 36; or

a person from another State detained in an authorised mental health service under section 368(3)(b).

The treatment criteria for a person are all of the following—

the person has a mental illness;

the person does not have capacity to consent to be treated for the illness;

because of the person’s illness, the absence of involuntary treatment, or the absence of continued involuntary treatment, is likely to result in—

imminent serious harm to the person or others; or

the person suffering serious mental or physical deterioration.

For subsection (1)(b), the person’s own consent only is relevant.

Subsection (2) applies despite the Guardianship and Administration Act 2000, the Powers of Attorney Act 1998 or any other law.