Context, aims and principles

Contributed by Dr Stephen Tang, Lecturer, ANU College of Law and current to March 2022.

Some history and context

Every Australian state and territory has its own mental health legislation. The ACT’s mental health legislation is the Mental Health Act 2015. In this chapter, references to ‘the Act’ are to the Mental Health Act 2015.

While there are increasing similarities in the mental health legislation of each state and territory, each jurisdiction’s legislation remains distinctive and is implemented in unique ways. Only the Mental Health Act 2015 applies to the ACT. Processes and concepts from other jurisdictions (even just across the border in Queanbeyan) do not apply in the ACT.

The Mental Health Act 2015 was passed by the ACT Legislative Assembly in 2015 after a long period of development and consultation with the ACT community. The Act came into effect on 1 March 2016, replacing the Mental Health (Treatment and Care) Act 1994. The passing of the Act was the most significant change to the ACT’s mental health law and policy in the past decade.

The Act has been subject to amendments since it has been passed, including by the recent Mental Health Amendment Act 2020. Further changes are likely over time to correct errors or address inefficiencies in the Act as they are identified, as well as to implement new policy directions. All changes which reflect a change in the policy underlying the Act will go through a process of public consultation before being debated in the Legislative Assembly.

Getting access to the Act

The official version of the Mental Health Act 2015 can be found on the ACT Legislation Register. A PDF version of the entire Act can be downloaded and printed freely. Only the ‘current’ version on this page should be used whenever an authoritative copy of the latest version of the legislation is required.

The ACT Legislation Register also contains previous versions of the Act, and explanatory information about the legislation which was submitted to the ACT Legislative Assembly before the Bill was debated and passed (see, in particular, the Explanatory Statement to the Mental Health (Treatment and Care) Amendments Bill 2014, which first introduced the changes which then became the Mental Health Act 2015. See also the Explanatory Statements to the Mental Health Bill 2015. The Legislation Register also contains previous generations of mental health legislation (e.g. the Mental Health (Treatment and Care) Act 1994), which are no longer in force but may be useful for historical or research purposes.

An alternative way to access the Act, or other legislation and legal material, is via AustLII. Although the text of the legislation on AustLII is not the official version, it is regularly updated and provides a convenient way to browse the Act section by section.

What does the Mental Health Act 2015 seek to do?

Mental health law is a delicate balance between contrasting and sometimes conflicting principles. We can see this tension if we look at the seven statements in section 5 of the Act. This is the ‘objects clause’ which sets out the purpose and policy intention of the Act. Section 5 states that the objects of the legislation are to:

1. promote the recovery of people with a mental disorder or mental illness; and
2. promote the capacity of people with a mental disorder or mental illness to determine, and participate in, their assessment and treatment, care or support, taking into account their rights in relation to mental health under territory law; and
3. ensure that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that is least restrictive or intrusive to them; and
4. facilitate access by people with a mental disorder or mental illness to services provided in a way that recognises and respects their rights, inherent dignity and needs; and
5. promote the inclusion of, and participation by, people with a mental disorder or mental illness in communities of their choice; and
6. facilitate access by people with a mental disorder or mental illness to assessment and treatment, care or support as far as practicable in communities of their choice; and
7. support improvements in mental health through mental health promotion, illness prevention and early intervention.

From these objects, and together with the rest of the Act, we can identify two contrasting themes:

1. The protection of people with mental illness or mental disorder (as well as the community), including through allowing, but tightly regulating, involuntary mental health assessment and detention and the provision of treatment, care and support; and
2. The promotion of the rights, capacity, inclusion, participation and recovery of people with mental illness or mental disorder.

The first theme, protection, has been the main principle behind mental health law for a long time. The reasoning behind this approach is that people with mental illness or mental disorder are sometimes unable to make decisions about their treatment, care and support which are necessary for their wellbeing and safety. As such, society has a positive obligation to ensure that people with mental illness and mental disorder receive appropriate treatment and care and are protected from harm, and that other people are also not harmed. As such, involuntary mental health treatment and detention can be permitted where it is independently determined that it is in the person’s best interests.

However, it is also recognised that involuntary treatment and detention is itself coercive, potentially traumatic, and could be used in a way which is disproportionate or unnecessary. As such, the legislation closely regulates how involuntary treatment and detention decisions are made. Detailed procedures and limitations are imposed to ensure that the actions taken are proportionate and the least restrictive way to protect the person’s rights and interests. In this way, the legislation is seeking to protect the person from the possible negative effects of involuntary treatment and detention as much as possible, in addition to the negative effects of the mental illness or disorder itself.

The second theme, by contrast, is about the promotion of a person’s inherent human rights, dignity and capacity. Here, mental health law is seen as a tool that can enhance someone’s health and wellbeing, not just to protect them from harm. To do this, people must be given opportunities to make decisions in relation to their own treatment, care and support as equal members of society. They must also have the opportunity to be supported and connected to others in their mental health care, rather than just be recipients of a medical intervention. This is a relatively new development in mental health law in Australia and around the world. This approach is intended to be the primary mindset of the Act, as legislation and contemporary thinking about mental health practice slowly moves away from a paternalistic and risk-based philosophy.

Mental Health and Human Rights

Both approaches to mental health law have been strongly influenced by developments in human rights law and practice locally and internationally, but in different ways. Firstly, the ACT is one of only two places in Australia that has a statutory bill of rights. All ACT legislation, including the Mental Health Act 2015, must be compatible with the rights expressed in the Human Rights Act 2004. These include the right to liberty and security of the person (and the corresponding right not to be detained arbitrarily)(s 18 Human Rights Act 2004), the right to privacy (s 12 Human Rughts Act 2004), and the right not to be subjected to medical treatment without free consent (s 10(2) Human Rights Act 2004).

At first glance, involuntary mental health detention and treatment seems to be inconsistent with these rights. However, section 28 of the Human Rights Act 2004 makes it clear that human rights may be subject to reasonable limits set by laws that can be demonstrably justified in a free and democratic society. When developing the Mental Health Act 2015, much consideration had to be given to whether the limitations on rights under the Act were reasonable and justified. It is generally (but not universally) accepted that temporary detention and limited treatment, which in the ACT can be reviewed by the ACT Civil and Administrative Tribunal (ACAT), is a justifiable limitation on the person’s right to liberty and to receive treatment only by consent.

The limitation on human rights also needs to be thought about in the broader context of the person’s life and engagement with society. In some cases, for example, not detaining and treating the person may lead to even greater harm. There may be foreseeable consequences which threaten the person’s other human rights, including the person’s right to life, reputation, privacy, and family, and may possibly negatively affect other people’s rights.

The continued development of mental health law in the ACT, as well as the way in which the Act is implemented through ACT Health’s operational policies and procedures, must therefore be consistent with the Human Rights Act 2004. Only the most limited possible restriction on rights must be imposed, and only when this is necessary and proportionate to the purpose of the limitation.

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) has also significantly influenced the development of the Mental Health Act 2015. The CRPD, to which Australia was an original signatory, came into effect in 2008. It is the UN’s latest human rights convention, which seeks to change attitudes and approaches to persons with disabilities. In the words of the UN, the CRPD attempts moves society away from:

"… viewing persons with disabilities as “objects” of charity, medical treatment and social protection towards viewing persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society".

The CRPD does not comprehensively define ‘disability’ but makes it clear that it includes mental and psychosocial disabilities (Article 1, CRPD). It is therefore directly relevant to mental health law, which has traditionally seen people with mental illness or mental disorder as ‘objects’ requiring protection rather than ‘subjects’ with full personhood and the capacity to make decisions and express preferences about their treatment, care and support.

Debates about how the CRPD applies to mental health law are ongoing. For the purposes of this chapter, it is sufficient to note that the Act, and the mental health legislation of most other Australian states and territories, tries to find the balance between the capacity and rights-promoting approach and the rights-protective approach. Achieving this balance is still a work in progress.

The more radical approach under the CRPD, which would be to abolish involuntary mental health detention and treatment altogether, has not been followed (see Australia’s declaration and reservation regarding CRPD, in which it ‘declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards’). At the same time, the Act tries to make supported decision-making and respect for the person’s will, preferences and right at the heart of mental health treatment, care and support. Only when all attempts at supporting and giving effect to the person’s own preferences has been unsuccessful can involuntary treatment be provided, and done so in a tightly-regulated, monitored, transparent and rights-oriented way.

Principles of treatment, care and support

The broader purposes of the Act in section 5 are given fuller expression in section 6. This section sets out the principles which must be taken into account whenever any action or decision is made under the Act. These principles are quite extensive but are clearly set out, and can be viewed directly here, in s 6 of the Act.

The inclusion of these principles in the Act (making the Act a piece of ‘principled legislation’) is intended to shape the culture of mental health services in the ACT by setting the standard for how mental health treatment, care and support should be provided, especially where this cannot be directly regulated through rules and decisions under the Act.