Rights – Mental Health

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Mental Health Act 2016

Queensland’s mental health legislation aims to improve and maintain the health and wellbeing of people with a mental illness who do not have the capacity to consent to treatment.

The Mental Health Act 2016 contains your rights, including:

  • Strengthened Patient rights- A critical right is that a person with capacity to make decisions has a right to decide whether or not to have treatment for any illness. A person may be treated without consent under a treatment authority only if the person lacks capacity (and therefore is unable to make decisions) and there is a serious risk of harm.  If a person can be treated under an Advanced Health Directive, then they must be, rather being involuntarily treated under the Act.
    • You also have the right to seek a second opinion about a treatment if there is an ongoing and unresolved concern with your treatment and care
    • You have a right to communicate by phone or electronic device while an inpatient, unless there is a risk to the patient
  • Strengthened Role for Support Persons – Families, carers, friends and other supporters can have a positive impact on a patient’s treatment, care and recovery.
    • You have the right to appoint one or two ‘nominated support persons’ to support you at a future time if you become an involuntary patient.
    • Your nominated support person must receive all of the notices that you receive from the treating team and may also support or represent you at Mental Health Review Tribunal hearings.
  • Treatment and Care – Authorised Mental Health Service Administrators – Administrators have specific responsibilities under the Act in relation to the treatment and care of patients. Administrators must take reasonable steps to ensure that you receive the treatment and care:
    • as recorded in your health records
    • for all other illnesses or conditions which may be affecting you
    • with regular assessments of your treatment

To view the Mental Health Act 2016 click here and select ‘M”.

For supporting information and forms:

  • General Overview of Mental Health Act 2016click here
  • Queensland Health website information on Mental Health Act 2016 click here

Decision Making Capacity

A key factor in the level of say someone can have over their treatment is determined by their decision making capacity at the time. The definition of ‘capacity’ is that an adult is capable of:

  • Understanding the nature and effect of decisions about a matter; and
  • Freely and voluntarily making decisions about the matter; and
  • Communicating these decisions in some way.

To have capacity to make treatment decisions someone would need to demonstrate that they understand the nature and purpose of the treatment for the illness, the benefits and risks of the treatment, or not having the treatment and alternatives available.

Right to be Informed

People receiving treatment have the right to expect the treating team will tell them about things, explain things to them and discuss things:

  • in a way appropriate for the patients age, culture, mental illness, disability and ability to communicate
  • in a way the patient is most likely to understand, for example, in their language.

Independent Patient Rights Advisors

Independent Patient Rights Advisors (IPRA’s) provide independent advice to people who have been diagnosed with a mental illness and are currently receiving treatment through public mental health services and Hospitals. IPRA’s may also provide advice to nominated support persons, family members, carers and other support people. For more information on IPRA’s, including the number for your local contact, refer to the Mental Health IPRA subsection of this guide.

Advance Health Directives for Mental Health

People with mental health conditions now have the option of having their treatment preferences formally recorded on an Advance Health Directive for Mental Health (ADH-MH). This means that if the person was to become unwell, with a mental health episode or otherwise physically, then the doctors and treating teams would be able to follow the patient’s treatment options that they have predetermined.

Forms and Guides for the Advance Health Directive for Mental Health are available online, click here.

Other resources about ADH-MH are available for consumers, click here.

There are also videos available to help you understand more about the Advance Health Directives for Mental Health, and how to complete the forms:

Clinicians and health professionals can access information about AHD-MH including factsheets and links to resources, click here.

Your Rights MHRT – Mental Health Review Tribunal (MHRT)

As a Patient attending a Tribunal Hearing you have the right to:

  • A fair and timely independent review
  • Attend your hearing
  • Have a lawyer represent you
  • Have someone support you
  • Respect and dignity
  • Natural justice
  • Know all the information the Tribunal is going to consider
  • Have your say
  • Have an interpreter
  • Privacy and confidentiality
  • Ask for a statement of reasons for the decisions made
  • Lodge an appeal (within 60 days of the decision) at the Mental Health Court
  • Make a complaint

To find out more about the Mental Health Review Tribunal (MHRT) click here.