Mental Health and Wellbeing Act 2022

to restate, with amendments, the law relating to the treatment of persons living with mental illness or experiencing psychological distress; and

to reform the system for the provision of mental health and wellbeing services; and

to improve the administration of the system for mental health and wellbeing services; and

to establish the Mental Health Tribunal; and

to establish the Mental Health and Wellbeing Commission; and

to establish the Victorian Institute of Forensic Mental Health; and

to establish the Victorian Collaborative Centre for Mental Health and Wellbeing; and

to establish Youth Mental Health and Wellbeing Victoria; and

to repeal the Mental Health Act 2014 and the Victorian Collaborative Centre for Mental Health and Wellbeing Act 2021; and

to consequentially amend other Acts.

Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

If a provision of this Act does not come into operation before 1 September 2023, it comes into operation on that day.

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

A person is not to be considered to have mental illness by reason only of any one or more of the following—

that the person expresses or refuses or fails to express a particular political opinion or belief;

that the person expresses or refuses or fails to express a particular religious opinion or belief;

that the person expresses or refuses or fails to express a particular philosophy;

that the person expresses or refuses or fails to express a particular sexual preference, gender identity or sexual orientation;

that the person engages in or refuses or fails to engage in a particular political activity;

that the person engages in or refuses or fails to engage in a particular religious activity;

that the person has engaged in a certain pattern of sexual behaviour;

that the person engages in conduct that is contrary to community standards of acceptable conduct;

that the person engages in illegal conduct;

that the person engages in antisocial behaviour;

that the person is intellectually disabled;

that the person uses drugs or alcohol;

that the person has a particular economic or social status or is a member of a particular cultural or racial group;

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

that the person is experiencing or has experienced psychological distress;

that the person has previously been diagnosed with, or treated for, mental illness.

Subsection (2)(l) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or alcohol from being regarded as an indication that a person has mental illness.

A person receives treatment for mental illness if professional skill is used—

to remedy or alleviate the person's mental illness; or

to alleviate the symptoms and reduce the ill effects of the person's mental illness.

Treatment includes electroconvulsive treatment and neurosurgery.

Detention is not treatment.

To avoid doubt, treatment means treatment for mental illness.

make decisions and participate in decision making; or

understand information and their rights; or

communicate their views, preferences, questions, or decisions.

communicating with the person in the person's preferred language including with the assistance of interpreters;

communicating in an accessible format, style or mode, including with the use of technology;

communicating with the person in a way that is tailored to the person's needs including their literacy, developmental needs or cultural needs;

communicating with the person in an appropriate physical or sensory environment;

allowing and enabling the person's family member, carer, supporter or advocate to be present either in person or by the use of technology;

providing appropriate spaces for communication between the person and the person's family members, carers, supporters or advocates.

This section applies if an entity is required by this Act to communicate with—

a consumer; or

a consumer's family; or

a consumer's carer; or

a consumer's guardian; or

a consumer's nominated support person or support person; or

a complainant; or

a person who is the subject of a proceeding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 before the Mental Health Tribunal.

The entity must take reasonable steps—

to provide appropriate supports; and

to explain the content of the communication and answer any questions as clearly and as completely as possible.

For the purposes of subsection (2), the entity must take reasonable steps to determine what appropriate supports would assist the person the entity is communicating with.

asking the person what supports would assist them to communicate and participate in decisions;

in the case of a patient, having regard to the patient's advance statement of preferences (if any);

in the case of a patient, asking their nominated support person what supports would assist the patient to communicate and participate in decision making; and

providing a consumer with information about the types of supports that are available to them so that they can identify what would assist them.

If a person is incapable of understanding information or any oral explanation at the time when it would otherwise be provided, the entity who is to give the information being communicated must ensure that reasonable further attempts are made to provide the information or explanation at a time when the person is able to understand the information or explanation.

In this section—

giving or providing any advice, notice or information; or

asking for, receiving or hearing, any advice, notice, information, views, preferences, consent or other decisions.

If a provision of this Act or the regulations requires that a person be examined, the person must be examined—

if it is practicable—in person; or

if it is not practicable—remotely.

For the purposes of determining whether it is not practicable to conduct an examination in person, regard must be had to any relevant guidelines issued by the chief psychiatrist.

avoid unnecessary duplication of inquiries, administration, reporting obligations or other actions; and

facilitate the coordination and expedition of those inquiries or actions.

In interpreting this Act, a construction that would promote the mental health and wellbeing principles is to be preferred to a construction that would not promote those principles.

The mental health and wellbeing principles, the decision making principles for treatment and interventions and the information sharing principles do not create a legal right in any person.

Contravention of the mental health and wellbeing principles, the decision making principles for treatment and interventions and the information sharing principles—

does not give rise to any civil cause of action merely because of contravention of the principle; and

no damages may be awarded in respect of contravention of any of the principles.

For the avoidance of doubt, nothing in this section limits any right to judicial review, the power to commence a proceeding, any cause of action or any right to damages a person may have under this Act or any other Act or law other than by operation of this section.

This Act binds the Crown in right of Victoria and, to the extent that the legislative power of the Parliament permits, the Crown in all its other capacities.

To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations.

to promote conditions in which people can—

experience good mental health and wellbeing; and

recover from mental illness or psychological distress;

to reduce inequities in access to, and the delivery of, mental health and wellbeing services;

to provide for comprehensive, compassionate, safe and high-quality mental health and wellbeing services that promote the health and wellbeing of people living with mental illness or psychological distress and that—

are accessible; and

respond in a timely way to people's needs and recognise that these needs may vary over time; and

are consistent with a person's treatment, care, support and recovery preferences wherever possible; and

are available early in life, early in onset and early in episode; and

recognise and respond to the diverse backgrounds and needs of the people who use them; and

provide culturally safe and responsive services to Aboriginal and Torres Strait Islander people in order to support and strengthen connection to culture, family, community and Country; and

connect and coordinate with other support services to respond to the broad range of circumstances that influence mental health and wellbeing including alcohol and other drug support services and treatment; and

include a broad range of treatment options with the aim of providing access to the same treatment and support irrespective of whether a person is receiving voluntary or compulsory treatment; and

include a broad and accessible range of voluntary treatment and support options—

to enable a reduction in the use of compulsory assessment and treatment; and

to enable a reduction in the use of seclusion and restraint with the aim of eliminating its use within 10 years;

to promote continuous improvement in the quality and safety of mental health and wellbeing services including by ensuring that the experiences of people living with mental illness or psychological distress, and the people receiving treatment, their carers, families and supporters, are at the centre of changes in practices and service delivery and the design and evaluation of systems;

to protect and promote the human rights and dignity of people living with mental illness by providing them with assessment and treatment in the least restrictive way possible in the circumstances;

to recognise and respect the right of people with mental illness or psychological distress to speak and be heard in their own voices, from their own experiences and from within their own communities and cultures;

to recognise, promote and actively support the role of families, carers and supporters in the care, support and recovery of people living with mental illness or psychological distress;

to promote and support the health and wellbeing of families, carers and supporters of people living with mental illness or psychological distress;

to recognise and value the critical role of the clinical and non-clinical mental health and wellbeing workforce and to support and promote the health and wellbeing of members of that workforce;

to promote the mental health and wellbeing principles.

The Parliament recognises that Aboriginal people in Victoria are First Nations people of Australia and acknowledges their enduring connection to Country, kin, land and culture.

The Parliament acknowledges the following—

that Aboriginal self-determination serves as a foundational principle to improve mental health and wellbeing outcomes of Aboriginal people in Victoria;

the lasting impact of laws, practices and policies on the mental health and wellbeing outcomes of Aboriginal and Torres Strait Islander people since colonisation and enduring to this day;

cultural dislocation, oppression, intergenerational trauma, lack of healing, systemic racism, institutionalised inequality and the loss of land, lore and language continue to harm the mental health and wellbeing of Aboriginal people in Victoria today;

the strength of Aboriginal people, culture, kinship and communities in the face of historical and ongoing injustices;

Aboriginal people's ongoing connection to culture, community and Country and the importance of this connection for the mental health and wellbeing of Aboriginal people in Victoria.

It is the intention of Parliament that the mental health system recognises, respects and supports the distinct cultural rights of Aboriginal people and their right to receive culturally safe holistic mental health and wellbeing services throughout Victoria.

The Parliament supports initiatives which address the ongoing mental health inequalities experienced by Aboriginal people in Victoria.

The Parliament recognises the essential role of Aboriginal community controlled health organisations in meeting the mental health and wellbeing and care needs of Aboriginal people in Victoria.

The Parliament supports the development of future reforms which further Aboriginal self‑determination within mental health and wellbeing services in Victoria.