People who experience mental health issues, and their families, are often impacted by the law. Each state and territory in Australia has mental health laws, known as Mental Health Acts. These Acts provide a definition of mental illness and set out the law in regards to the treatment and rights of people with mental health issues. This includes provisions that, in some circumstances, allow for treatment to be given to someone without their consent. This is known as compulsory treatment.

In seeking information and advice in regards to mental health and the law, it is important to find information that is specific to your state and territory. Your local legal aid office can provide you with this information.

Principles of Mental Health Acts

Mental Health Acts often include principles that guide the provision of mental health services under the Act. For example, principles under the Victorian Mental Health Act 2014 state that:

  • people receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred 
  • people receiving mental health services should be provided those services with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life
  • carers (including children) for people receiving mental health services should have their role recognised, respected and supported

Definitions of mental illness under Mental Health Acts

There is no one definition of mental illness adopted in law across Australia.

The Victorian Mental Health Act 2014 defines mental illness as a “medical condition where a person’s thought, mood, perception or memory is significantly disturbed”. This Act also provides for a number of characteristics or behaviours that can’t be defined as mental illness, such as behaving in an anti-social way, sexual orientation, political views or previously being treated for mental illness.

In NSW, the Mental Health Act 2007 defines mental illness as a “condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions (b) hallucinations (c) serious disorder of thought form (d) a severe disturbance of mood (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to above”.

Voluntary treatment

Voluntary treatment means a person may be admitted to hospital or receive treatment by choice. That person also has the right to stop treatment or leave hospital or, as they are there on a voluntary basis.

Compulsory treatment

Compulsory treatment means a person can be given treatment without their consent, either in hospital or in the community. A Mental Health Act sets out the steps that must be taken by specified mental health professionals in order for someone to be placed under any type of compulsory treatment, including how people are assessed in meeting criteria for a compulsory treatment. Criteria often include where someone is at immediate risk to themselves or others and do not wish to receive treatment.

A treatment order outlines the type of compulsory treatment that can be given and the length of that compulsory treatment before review.

Mental Health Acts also provide a number of provisions for review and appeal in relation to the compulsory treatment. This may include review by a Mental Health Tribunal.

Know your rights

Understanding your rights under the law can be difficult.  Here are some things that you might find helpful in understanding and protecting your rights.

Speak to someone: there are a number of advocacy services and legal services that have been established to provide specialised advice to people experiencing mental health issues and their families.

Ask about your rights: if you find yourself in a situation where you are unsure, ask to be told about your rights. You might like to have someone with you as a support or advocate. You might need to ask for this, if this type of support has not been offered.

Learn about your rights: if you know rights before you find yourself in a difficult or confusing situation, you may be in a better place to advocate for yourself or the person you care about. In some states, for example, you can provide an advanced statement which sets out how you would like to be treated should you become unwell.

People receiving mental health services should be involved in all decisions about their assessment, treatment and recovery and be supported to make their own decisions. The Healthtalk Australia website features helpful information and resources about supported decision making, including stories from people with lived experience of mental health issues and from carers.

For more information and support, contact:

  • your local legal aid office
  • your local advocacy services

If you need to talk, call our Helpline.

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Remember, you are not alone. Hear stories from people who have been there.

For more information, please contact Wellways on 1300 111 400.