Thursday, 23 June 2022

Mental Health and Wellbeing Bill 2022

Statement of compatibility

Mr MERLINO (Monbulk—Minister for Education, Minister for Mental Health) (10:20): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Mental Health and Wellbeing Bill 2022.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Mental Health and Wellbeing Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill replaces the Mental Health Act 2014 and implements the recommendations of the Royal Commission into Victoria’s Mental Health System, released in February 2021, insofar as it recommended a new statute for mental health in Victoria. The philosophy behind the Bill is to empower and engage with all the people who use it. The new scheme will make the mental health and wellbeing system accessible to people across Victoria, with restrictive interventions and compulsory treatment no longer being its focus. The Bill aims to support the agency and autonomy of people who engage with the mental health and wellbeing system.

Some of the safeguards that had been introduced into the 2014 legislation were found not to be working as well as they could, such as the introduction of advance statements and the provision for a nominated person. This Bill aims to improve the uptake of those safeguards by consumers and to increase their impact.

A primary concern of many of the recommendations of the Royal Commission was to better ensure that legislative human rights protections were fully and properly implemented in practice. This has been achieved in the Bill by introducing greater detail with respect to the objectives and principles that are to guide decision-making by all persons exercising functions and powers with respect to compulsory assessment and treatment decisions and other significant decisions and functions under the Bill.

The objectives of the Bill are set out in clause 12 and include many objectives that promote human rights, including to:

• promote the conditions in which people can experience good mental health and recover from mental illness or psychological distress;

• reduce inequities in access to mental health and wellbeing services;

• 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;

• 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;

• recognise and respect the right of people with mental illness or psychological distress to speak and be heard in their own voices; and

• recognise and promote the role of families, carers and supporters.

The Bill provides in clause 29, that mental health and wellbeing service providers exercising functions under the Bill must make all reasonable efforts to comply with the mental health and wellbeing principles, and give proper consideration to them when making decisions. The mental health and wellbeing principles are set out in clauses 16 to 28 of the Bill. They are:

• the dignity and autonomy principle—which provides that the rights, dignity and autonomy of a person living with mental illness or psychological distress is to be promoted and protected, and the person is to be supported to exercise those rights;

• the diversity of care principle—which requires a person living with mental illness or psychological distress to have access to a diverse mix of treatment, care and support services determined by their needs and preferences;

• the least restrictive principle—which requires mental health and wellbeing services to be provided with the least possible restriction on rights, dignity and autonomy;

• the supported decision-making principle—which requires that supported decision-making practices are to be promoted and persons receiving services are to be supported to make decisions and be involved in decisions about their assessment, treatment and recovery and that their views and preferences are to be given priority;

• the family and carers principle—which provides that families, carers and supporters are to be supported in their role in decisions about the person’s assessment, treatment and recovery;

• the lived experience principle—which provides that the lived experience of a person with mental illness or psychological distress and their carers and supporters is to be recognised and valued as experience that makes them valuable leaders and active partners in the mental health and wellbeing service system;

• the health needs principle—which requires the medical and other health needs of a person with mental illness or psychological distress to be identified and responded to;

• the dignity of risk principle—which recognises that a person with mental illness or psychological distress has the right to take reasonable risks in order to achieve personal growth, self-esteem and overall quality of life;

• the wellbeing of young people principle—which provides that the health, wellbeing and autonomy of children and young people receiving mental health and wellbeing services are to be promoted and supported, including by providing treatment and support in age and developmentally appropriate settings and ways;

• the diversity principle—which provides that the diverse needs and experiences of a person receiving mental health and wellbeing services is to be actively considered, including needs relating to their particular attributes, and that services are provided in a manner that is safe, sensitive and responsive;

• the gender safety principle—which recognises that people receiving mental health and wellbeing services may have specific safety needs or concerns based on their gender and that consideration is to be given to these in providing services;

• the cultural safety principle—which provides that mental health and wellbeing services are to be culturally safe and responsive to people of all racial, ethnic, faith and cultural backgrounds; and

• the wellbeing of dependents principle—which requires protection of the needs, wellbeing and safety of children, young people and other dependents of people receiving mental health and wellbeing services.

The decision-making principles for treatment and interventions that apply to decision-making under both Chapters 3 and 4 of the Bill are set out in clauses 79 to 83 of the Bill. They are:

• the care and transition to less restrictive support principle—which provides that compulsory assessment and treatment is to be provided with the aim of promoting a person’s recovery and transitioning them to less restrictive treatment, care and support;

• the consequences of compulsory assessment and treatment and restrictive interventions principle—which recognises that the use of compulsory assessment and treatment or restrictive interventions significantly limits a person’s human rights and may cause possible harm;

• the no therapeutic benefit to restrictive interventions principle—which recognises that the use of restrictive interventions on a person offers no inherent therapeutic benefit to the person;

• the balancing of harm principle—which provides that compulsory assessment and treatment or restrictive interventions are not to be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use; and

• the autonomy principle—which provides that the will and preferences of a person are to be given effect to the greatest extent possible in all decisions about assessment, treatment, recovery and support, including when they relate to compulsory assessment and treatment.

Chapter 2 sets out additional safeguards for patients’ human rights, including by providing (in clauses 32 to 35) for the steps that need to be taken to provide treatment, care and support consistently with any advance statement of preference made by a person under clause 58. The Bill also sets out (in clauses 36–40) requirements for a statement of rights to be provided to a person in a broader range of circumstances than under the current Act, including when a person is admitted to bed-based services at designated mental health services and when a person’s consent to ECT or neurosurgery for mental illness is sought. This is in addition to existing requirements under the Act that a statement of rights be given to people who are subject to orders under the Act. A statement of rights explains the rights that a person has under the Bill and the Bill includes requirements that the person providing the statement must also take reasonable steps to ensure the statement is understood.

Clause 41 provides for the establishment of a primary non-legal mental health advocacy service provider and other suitable providers of these services to promote and support the human rights of people experiencing, or at risk of, compulsory treatment in mental health care. Consumers advocated for the inclusion of this kind of service in the Bill based on the Independent Mental Health Advocacy Service provided by Victoria Legal Aid.

Clause 45 provides for non-legal mental health advocates to provide assistance to consumers of mental health and wellbeing services to enable them to understand and exercise their rights under the Bill, including to participate in the making of decisions regarding their care. The advocacy model adopted in the Bill is based on an “opt-out” system, which will ensure that the primary service will be notified of every consumer that is being compulsorily treated and of other significant events with respect to the person. Clause 51 provides that the primary non-legal mental health advocacy service provider will maintain an “opt-out” register to allow people to register their preference not to be contacted by a non-legal mental health advocacy service provider.

Clause 53 provides inpatients with the right to communicate lawfully with any person, including for the purposes of seeking legal advice and representation or seeking the services of a mental health advocate, and to be assisted to do so. Clause 58 provides for the making of advance statements of preference setting out a person’s preferences in relation to their treatment, care and support in the event that they become a patient. Clauses 61–62 provide for a person to nominate another person to be their nominated support person whose role, amongst other things, is to advocate for the views and preferences expressed by the patient, including those in the advance statement of preferences and to support the patient to communicate their questions, preferences and decisions and to exercise their rights under the Bill. Although nominated support persons are a part of the existing legislation, the role of such a person in the Bill clarifies that their role is to ensure the patient’s views and preferences are heard, and not to advocate for their best interests

Clause 67 provides patients with a right to seek a second psychiatric opinion as to whether the relevant criteria for any relevant order applying to the patient (with the exception of forensic patients) are met and to review the treatment provided to the patient. Clauses 73–76 respectively provide for a further review of the patient’s treatment by the authorised psychiatrist and the chief psychiatrist in specified circumstances following a second psychiatric opinion.

Although the Bill, like the existing Mental Health Act 2014, contains many provisions that will limit human rights under the Charter in significant ways, it is intended that the Bill will better ensure that these limitations are proportionate and the least restrictive measures required to ensure that mental health treatment is provided to those who need it. This has been informed by the Royal Commission and the input of people with lived experience of mental illness, in particular those who have received compulsory treatment, to the Royal Commission’s inquiries.

I consider that the Bill has achieved its aim of better protecting and promoting the human rights of people with mental illness and promoting their recovery and wellbeing. In particular, the requirement for service providers to make all reasonable efforts to comply with the Mental Health and Wellbeing Principles when exercising a function and give proper consideration to those principles when making a decision and the introduction of the Decision-making Principles for treatment and interventions, and information sharing principles will ensure that the primary decision-making powers and functions in the Bill will be exercised in a manner that is compatible with Charter rights.

Human Rights Issues

The Bill engages a number of rights which are protected and promoted by the Charter. Various provisions of the Bill engage Charter rights in similar ways and these will be considered together to avoid repetition. I consider below each of the kinds of measures adopted by the Bill, and whether those measures limit Charter rights.

To the extent that Charter rights may be limited by each set of measures, I consider whether such limitations are reasonable and can be demonstrably justified in a free and democratic society, having regard to each of the factors in s 7(2).

Compulsory treatment measures

In the context of this Statement, unless otherwise identified, treatment means treatment for mental illness as set out in clause 5 of the Bill.

Under clause 85 of the Bill, people will continue to be presumed to have capacity to give informed consent to any treatment or medical treatment and their informed consent must be sought before treatment is given. This aligns the Bill with the Medical Treatment, Planning and Decisions Act 2016, the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2018, which all include a presumption of capacity as required by the Convention on the Rights of Persons with a Disability. Clause 86 provides when a person may give informed consent, including that they have been given adequate information about the proposed treatment or medical treatment, been given a reasonable opportunity to make a decision and given their consent freely without undue pressure or coercion by any other person. The clause clarifies that a person has been given reasonable opportunity to make a decision if they have been provided with ‘appropriate supports’. Appropriate supports are defined in clause 6 and are the measures which can reasonably be provided to a person to assist them to make decisions, understand information and communicate their views and preferences. Clause 87 provides that a person has capacity if they are able to understand the information they are given for the purposes of deciding whether or not to consent, and are able to remember that information, and are able to use or weigh that information in deciding whether or not to consent, and are able to communicate the decision they make by any means.

However, the Bill does allow for the use of restrictive interventions and intensive monitored supervision and for assessment and treatment without the consent of the patient in specific, limited circumstances, even where that patient has capacity. This aspect of the Bill, like the existing mental health legislation, allows for a person who has capacity to be treated for mental illness without their consent. Clause 89 provides that if a patient does not have capacity to give informed consent to treatment proposed by an authorised psychiatrist, or has capacity to give informed consent but does not give it, and the authorised psychiatrist is satisfied that the treatment is clinically appropriate and there is no less restrictive way for the patient to be treated, they may make a treatment decision for the patient (other than in respect of ECT or neurosurgery). At common law, all persons who have capacity can refuse medical treatment. The Convention on the Rights of Persons with a Disability expresses this in the “right to respect for his or her physical and mental integrity on an equal basis with others” in article 17. The other Victorian legislation relating to medical decisions generally reflects this.

In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must consider and give appropriate weight to a range of specified matters, including the patient’s views and preferences, the views and preferences of the patient expressed in their advanced statement of preferences or the patient’s views expressed by their nominated support person, and the likely consequences for the patient if the treatment is not administered. Further, clause 82 introduces the balancing of harm principle with respect to treatment and interventions, which provides that compulsory assessment and treatment or restrictive interventions cannot be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use.

The provisions on capacity and informed consent are largely the same as those in the existing legislation. Those provisions were examined in PBU & NJE v Mental Health Tribunal (2018) 56 VR 141 (PBU) and no Charter incompatibility was found with respect to them. In that case, the Supreme Court observed that the compulsory treatment regime in the existing Act represented a paradigm shift away from best interests paternalism to the least restrictive kind of treatment, which draws on elementary human rights concepts (PBU (2018) 56 VR 141, [101]).

Clause 92 provides for certain other people to consent to medical treatment (which is defined in clause 3 so as not to include “treatment” under the Bill as defined in clause 5 of the Bill) if a patient does not have the capacity to give informed consent. This aligns the Bill with the Medical Treatment, Planning and Decisions Act 2016.

Part 3.5 regulates the use of electroconvulsive treatment (ECT). Clause 98 provides that ECT can be performed on an adult patient without their consent by order of the Mental Health Tribunal (MHT). An application to the MHT can only be made by an authorised psychiatrist where the patient does not have capacity to give informed consent and the authorised psychiatrist is satisfied that in the circumstances there is no less restrictive way for the patient to be treated. In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must consider and give appropriate weight to a range of specified matters including the patient’s views and preferences, the patient’s views expressed by the patient’s nominated support person and the likely consequences for the patient if ECT is not administered. Division 3 of Pt 3.5 provides for applications with respect to adults who are not patients. As an additional protection, an order of the MHT is required for the performance of ECT on a young person regardless of whether that young person consents or not. . Division 4 of Pt 3.5 provides for applications to be made to the MHT with respect to young patients and Division 5 provides for applications with respect to young persons who are not patients. Before granting an application, the MHT must also be satisfied that there is no less restrictive way for an adult or young person who does not consent to ECT to be treated (clauses 100, 105, 110 and 115). Clauses 105 and 115 provide that for adults and young people who are not under compulsory orders (i.e. who are not patients) to receive non-consensual ECT their medical treatment decision-maker must give informed consent in writing or an adult can give an instructional directive consenting to ECT. These clauses invoke the decision-making rules in the Medical Treatment, Planning and Decisions Act 2016 that prioritise the wishes of the proposed recipient in decision-making. There are safeguards in clauses 102, 107, 112 and 117 to deal with changing circumstances which require that ECT must end.

Part 3.7 regulates the use of restrictive interventions (which are defined to include seclusion, bodily restraint or chemical restraint) and contains a number of important safeguards to ensure that their use is justified and proportionate in each case. It implements the Royal Commission recommendation to recognise that chemical restraint is the giving of drugs for non-therapeutic purposes and to regulate it like other forms of restraint. Clause 125 requires service providers to aim to reduce the use of restrictive interventions and eventually eliminate their use. Clause 126 provides that restrictive interventions may only be used in designated mental health services (DMHS) in accordance with Division 1 and 2 of Part 3.7. Clause 128 provides that restrictive interventions can only be used on a person if necessary to prevent imminent and serious harm to that person or another person (and in the case of bodily restraint to administer treatment or medical treatment to the person) after all reasonable and less restrictive options have been tried or considered and found to be unsuitable. The authority to carry out a restrictive intervention ends if a person who may authorise it is satisfied that the use is no longer necessary (clause 129).

Division 2 of Pt 3.7 contains authorisation, notification, monitoring and reporting provisions with respect to restrictive interventions. Clause 133 provides that the other less restrictive means tried or considered for the person in seeking to achieve the purpose of the restrictive intervention must be documented, including the reason why the intervention is necessary, all the other less restrictive means tried or considered and the reasons why those less restrictive means were found to be unsuitable. Persons who authorise the use of restrictive interventions on a person must ensure that the person is provided with facilities and supplies that meet their needs and maintain their dignity (clause 136).

Clause 140 allows for the use of chemical restraint during transport if all reasonable and less restrictive options have been tried or considered and found unsatisfactory and it is necessary to prevent serious and imminent harm to the person or another person.

Chapter 10 regulates compulsory mental health treatment for security patients, including persons on court secure treatment orders made by a court and secure treatment orders made under this Chapter. The Chapter also provides for leave of absence, monitored leave, transfer to other designated mental health services and also pathways for security patients to have their orders revoked.

Chapter 11 deals with forensic patients—it includes provisions regarding leave for forensic patients, security conditions and transfer of a forensic patient to another designated mental health service. Clause 575 authorises security conditions that the authorised psychiatrist considers necessary to protect the health and safety of the forensic patient and the safety of any other person.

Chapter 4 of the Bill provides for compulsory assessment and treatment. Clause 144 provides for the making of assessment orders by medical practitioners or authorised mental health practitioners, if satisfied that the compulsory assessment criteria (as set out in clause 142) apply to the person. Assessment orders authorise an authorised psychiatrist to compulsorily examine the assessment patient to see whether the compulsory treatment criteria apply to them. Clause 142 provides that an assessment order can only be made where the person appears to have a mental illness and because of that they appear to need immediate treatment to prevent serious deterioration in their mental or physical health or serious harm to the person or another person. Importantly, that clause provides that the compulsory assessment criteria are only met where there are no less restrictive means reasonably available to enable the person to be assessed. Assessment involves an examination and an inpatient assessment order authorises a person being detained for the purpose of transport to a DMHS and for the purpose of assessment in a DMHS (clause 146). Treatment can only be given to a person on an assessment order with informed consent or if a registered medical practitioner is satisfied that urgent treatment must be given to prevent serious deterioration in the patient’s mental or physical health or serious harm to the patient or another person (clause 160). Part 4.3 provides additional provisions that facilitate assessments with respect to court assessment orders made under the Sentencing Act 1991.

This assessment may result in a person being treated without their consent if the compulsory treatment criteria (set out in clause 143) apply to the person. If an authorised psychiatrist is satisfied that the treatment criteria do apply, the person may be made subject to a 28 day temporary treatment order pursuant to clause 180. A treatment order may subsequently be made in respect of the person by the MHT pursuant to clause 192. In both cases, the Bill is prescriptive about what matters must be considered, including the person’s views and preferences including those expressed in any advance statement. The compulsory treatment criteria contained in clause 143 require that the person has a mental illness, because of which they need immediate treatment to prevent serious deterioration in their mental or physical health or serious harm to the person or another person. These criteria are the same as those under the current Act and their operation will soon be reviewed as part of a planned independent review of the compulsory treatment criteria and alignment of decision making laws under the Bill with those of other decision making legislation. Importantly, clause 143 provides that the criteria are only met where there are no less restrictive means reasonably available to enable the person to be given immediate treatment. Compulsory treatment can involve inpatient treatment, which will involve transportation to and detention at a DMHS under clauses 185 and 197. An inpatient temporary treatment order or treatment order may only be made if the authorised psychiatrist or MHT as applicable is satisfied that treatment cannot occur in the community, otherwise a community temporary treatment order or community treatment order must be made. Where the current Act allows for community treatment orders to be made for up to 12 months, the Bill provides for more frequent oversight by the MHT by limiting these orders to a maximum duration of 6 months.

Clause 535 (in Pt 10.2) allows for the making of secure treatment orders by the Justice Secretary with respect to people who are detained in prison or other place of confinement, where conditions that are the equivalent of the compulsory treatment criteria are met, including that there is no less restrictive means reasonably available to enable the person to receive immediate treatment. The MHT must review that order within 28 days of its making and at least every 6 months after that (clause 538). Clause 560 provides for the authorised psychiatrist to specify any security conditions that they are satisfied are necessary to protect the health and safety of the patient or any other person.

Where a person is being assessed or treated without their consent, there are various safeguards requiring the provision of information (clauses 150, 156, 186 and 198) and the notification of relevant people and entities (clauses 151, 152, 157, 158, 187, 188 and 199). Importantly, a person may apply to the MHT for revocation of a temporary treatment order or a treatment order, and the MHT must hear and determine that application as soon as practicable (clause 206). Clause 395 provides for the appointment of community visitors, who must be independent of the Department and from providers of services and under clause 399 are able to visit prescribed premises and assist people who are receiving mental health and wellbeing services there. A person may request to see a community visitor and this request must be passed onto the community visitors within 2 days.

Chapter 12 of the Bill introduces a new type of order—the intensive monitored supervision order to respond to the needs of a small group of patients already in a secure setting that present an ongoing serious risk of harm to others. Clause 578 provides that the use of intensive monitored supervision is confined to people who present an ongoing unacceptable risk of seriously endangering the safety of another person and the person requires an immediate period of supervision in a supervision unit that limits contact with others to mitigate that risk. For an intensive monitored supervision order to be made for a person, all less restrictive options must have been tried to mitigate the risk posed by the patient and been found to be ineffective. Clause 577 provides that these orders can only be used by Forensicare, the service that deals with the small number of patients who present such a risk, and only in a supervision unit at its premises where secure services are provided.

In recognition of the facts that limiting a person’s contact with others by physical separation or “isolation” can have a compounding impact and that its impacts become harsher the longer they are in place, the use of intensive monitored supervision is subject to rigorous oversight and review mechanisms to safeguard against unjustifiable limitations on a person’s human rights by carrying out the order in an excessive way or failing to release a person where the relevant threshold is no longer met. In order to use intensive monitored supervision, an application must be made to the MHT, which may grant an order of the type described in clause 583, which may authorise the placing of the patient in a supervision unit and limiting their contact with others for a period of not more than 28 days. An order must immediately be revoked by the authorised psychiatrist if they are satisfied that the relevant criteria no longer apply (clause 588). Such an order does not prevent a person from moving outside the supervision unit or having contact with other people if permitted to do so by the authorised psychiatrist.

This Chapter contains specific safeguards to ensure that the use of intensive monitored supervision is justified and does not become disproportionate, including by enabling a person subject to an order to apply to the MHT for revocation of the order (clause 89), by requiring people to be provided with facilities and supplies that meet their needs and maintain their dignity (clause 585), and by the provision of separate and specific authorisation, monitoring and reporting provisions. The supervision unit in which a patient will be placed pursuant to an intensive monitored supervision order must meet the specifications set out in the Bill, including that it has bathroom facilities, a space for sleeping and a separate space for sitting. Patients subject to these orders must be permitted to spend time outdoors every day. The Chapter also requires Forensicare to establish a clinical committee to review the progress of a person’s treatment and their progress towards no longer needing intensive monitored supervision (clause 586).

Mental Health and Wellbeing Commission

Chapter 9 of the Bill establishes the Mental Health and Wellbeing Commission, an independent oversight body, and a complaints handling system to provide redress where consumers have complaints about services provided under the Bill. The Commission is charged with gathering information and data about the system, and has the power to conduct investigations and inquiries. Clause 420 requires that of the four Commissioners, at least one of the Commissioners must be a person with lived experience of mental illness and one must have lived experience of caring for a person with mental illness. Appointing people with lived experience will promote human rights compliance by ensuring the Commissioners properly understand the human rights limits faced by mental health service consumers.

Rights engaged

Although the purposes of the Bill are beneficial and aim to promote mental health and wellbeing, the provisions authorising compulsory treatment measures (including restrictive interventions, intensive monitored supervision and compulsory assessment and treatment) are nevertheless likely to either engage or limit the following Charter rights: equality (s 8); the rights not to be subjected to cruel, inhuman and degrading treatment (s 10(b)) or medical treatment without consent (s 10(c)); freedom of movement (s 12); privacy (s 13(a)); freedom of thought, conscience, religion and belief (s 14); the right to the protection of families and children (s 17); cultural rights (s 19); liberty (s 21); the right to humane treatment when deprived of liberty (s 22); and the right to a fair hearing (s 24).

Equality

Section 8(3) of the Charter relevantly provides that every person is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that laws and policies are applied equally, and do not have a discriminatory effect. Discrimination under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in s 6 of that Act, which includes mental illness (within the definition of a disability).

The compulsory treatment provisions may potentially amount to direct discrimination on the basis of disability. Direct discrimination occurs where a person treats a person with an attribute unfavourably because of that attribute. The provisions treat people with mental illness differently from other people on the basis of their mental illness. The provisions also treat people with a mental illness differently from people with a physical illness because the Bill allows treatment without consent in circumstances where the Medical Treatment, Planning and Decisions Act 2016 does not—namely where a person has capacity.

Cruel, inhuman or degrading treatment

There is no definition of what constitutes “cruel, inhuman or degrading” treatment or punishment in the Charter. Whether a particular act will amount to torture or to cruel, inhuman or degrading treatment or punishment will depend on all the circumstances, including the duration and manner of the treatment, and its physical or mental effect on the person, and the purpose for which the treatment was imposed. Treatment must reach a “minimum level of severity” to meet this description (Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, [250]).

The use of restrictive interventions and intensive monitored supervision, where there is not a pressing and beneficial need for their use, or without safeguards against abuse, could notionally limit the right in s 10(b). However, as discussed, the Bill contains a number of rigorous, improved safeguards. In particular, the Bill imposes an appropriately high threshold for the use of such practices—including that they can only be used where it is necessary to protect the person concerned, or other persons, from imminent and serious harm—and also requires that people who are subject to restrictive interventions and intensive monitored supervision be provided with the facilities and supplies needed to meet their needs and maintain their dignity. The balancing of harm principle with respect to treatment and interventions, requires that compulsory assessment and treatment or restrictive interventions not be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use. In light of the protective purpose of the powers and the associated safeguards, I do not consider that the Bill limits the right in s 10(b) of the Charter.

Protection from medical treatment without consent

Section 10(c) of the Charter provides that a person must not be subjected to medical treatment without their full, free and informed consent. The right is concerned with personal autonomy and dignity. The Bill contains many provisions designed to promote the autonomy and dignity of patients and consumers of mental health and wellbeing services. However, the compulsory treatment provisions authorise the medical assessment and treatment of people without their consent, even where they have capacity, which will limit this right.

Freedom of movement

The right to freedom of movement is contained in s 12 of the Charter and applies generally to a person’s movement within Victoria. The right has been described as providing protection from unnecessary restrictions upon a person’s freedom of movement. It extends, generally, to movement without impediment throughout the State and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest (Gerhardy v Brown (1985) 159 CLR 70, 102, cited in DPP v Kaba (2014) 44 VR 526, [100]).

Relevantly, the right to freedom of movement will be engaged where a person is required to move to or from a particular place or is prevented from doing the same, is subjected to strict surveillance or reporting obligations relating to moving, or directed where to live. Some of the ways that restrictive interventions are likely to be used will limit people’s freedom of movement. However, the right is directed at restrictions that fall short of physical detention coming within the right to liberty under s 21 (see Kracke v Mental Health Review Board (2009) 29 VAR 1, [588]). Accordingly, the intensive monitored supervision and the compulsory treatment of a person as an inpatient will be considered under the right to liberty in s 21.

Rights to privacy, family and home

Section 13(a) of the Charter provides, relevantly, that a person has the right not to have their privacy, family or home unlawfully or arbitrarily interfered with. Section 13(a) contains internal qualifications; namely, interferences with privacy only limit the right if they are unlawful or arbitrary. An interference will be lawful if it is permitted by a law which is clear, precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. This requires a broad and general assessment of whether any interference on a person’s privacy extends beyond what is reasonably necessary to achieve the lawful purpose being pursued (Thompson v Minogue [2021] VSCA 358, [55], [56]).

‘Privacy’ is a right of considerable amplitude. The fundamental values which the right to privacy expresses are the physical and psychological integrity, individual and social identity, and autonomy and inherent dignity, of the person. It protects the individual’s interest in the freedom of their personal and social sphere. Relevantly, this encompasses their right to establish and develop meaningful social relations (Kracke v Mental Health Review Board (General) (2009) 29 VAR 1, [619]–[620]).

The ‘family’ aspect of s 13(a) is related to s 17(1) of the Charter, which states that families are entitled to protection by society and the State. However, whilst the two rights overlap, they are not co-extensive. Section 13(a) is a negative obligation that only prohibits unlawful or arbitrary interferences with family; whereas s 17(1) is a positive obligation on society and the State.

The ‘home’ aspect of s 13(a) refers to a person’s place of residence, regardless of whether they have a legal interest in that residence (Director of Housing v Sudi (2010) 33 VAR 139, [32]). What constitutes an interference with this aspect of the right to privacy has been approached in a practical manner and may cover actions that prevent a person from continuing to live in their home (see Director of Housing v Sudi (2010) 33 VAR 139).

All three aspects of this right are engaged by the compulsory assessment and treatment measures, which could affect personal autonomy and private relationships, affect the ability of families to gather with members of the family with mental illness, and the ability of people to reside in their own homes if they are detained. However, in my view, the measures do not limit the right to privacy. As mentioned above, the right in s 13(a) of the Charter will only be limited where an interference with privacy is unlawful and arbitrary (Thompson v Minogue [2021] VSCA 358, [57]). The clauses of the Bill which authorise interference with a person’s privacy, family or home by the use of compulsory treatment measures will be lawful, by virtue of the clauses themselves being clear, precise and appropriately circumscribed, and not arbitrary, because the protective purpose and safeguards upon the use of the compulsory treatment measures will ensure that their use is proportionate to the legitimate aims sought to be achieved.

Freedom of religion and belief

Section 14 of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to demonstrate one’s religion or belief individually or as part of a community, whether in public or private, through worship, observance, practice and teaching. A person must not be restrained or coerced in a way that limits their freedom to have a belief. The freedom to hold a belief is absolute, however the other aspects of the right are not (Christian Youth Camps Ltd v Cobaw Community Health Services (2014) 50 VR 256, [537]).

The compulsory treatment measures could place limits on the freedom to demonstrate one’s religion or belief as part of a community where people are detained or isolated. They could also limit the right where a person has beliefs that are opposed to the relevant treatment, if those beliefs have the necessary cogency, seriousness, cohesion and importance to engage the right (Campbell v United Kingdom (1982) 4 EHRR 293, [36]). The Bill contains measures that seek to ameliorate any impacts on religious practice, including by requiring that people who are subject to restrictive interventions and intensive monitored supervision be provided with the facilities and supplies needed to meet their needs and maintain their dignity. The Bill also requires that consideration of a person’s religion be actively considered as part of the diversity principle in clause 25 and the cultural safety principle in clause 27.

Freedom of peaceful assembly and association

Section 16(1) of the Charter provides that every person has the right to peaceful assembly. This provision reflects the right of persons to gather together as a means of participating in public affairs and to pursue common interests or further common purposes.

Similarly, s 16(2) of the Charter relevantly provides that every person has the right to freedom of association with others. This right is concerned with allowing people to pursue common interests in formal groups, such as political parties, professional or sporting clubs, non-governmental organisations, trade unions, and corporations (Joseph and Castan, The International Covenant on Civil and Political Rights (3rd ed, Oxford University Press, 2013), [19.13]).

This right could be limited by compulsory treatment measures involving the detention or isolation of a person. However, clause 145 of the Bill provides that an inpatient assessment order cannot be made for a person unless the person cannot be assessed in the community. Similarly, clauses 181(2) and 194(2) of the Bill provide, respectively, that an authorised psychiatrist must not make an in-patient temporary treatment order and that the MHT must not make an in-patient treatment order unless a patient cannot be treated in the community.

Protection of families and children

Section 17(1) of the Charter recognises that families are the fundamental group unit of society, and entitles families to protection by society and the State. Section 17(1) is related to the s 13(a) right and an act or decision that unlawfully or arbitrarily interferes with a person’s family is also likely to limit that family’s entitlement to protection under s 17(1).

The Charter does not define the term ‘family’; however, extrinsic materials and judicial consideration confirm that it is to be given a broad interpretation. It at least includes ties between near relatives, with other indicia of familial relationships including cohabitation, economic ties, and a regular and intense relationship. Cultural traditions may be relevant when considering whether a group of persons constitute a ‘family’ in a given case. In this respect, the cultural right in s 19(2)(c) of the Charter, which states that Aboriginal people must not be denied the right to maintain their kinship ties, is also relevant.

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. It recognises the special vulnerability of children, defined in the Charter as persons under 18 years of age. ‘Best interests’ is considered to be a complex concept which must be determined on a case-by-case basis. However, the following elements may be taken into account when assessing the child’s best interests: the child’s views; the child’s identity; preservation of the family environment and maintaining relationships; care, protection and safety of the child; situation of vulnerability; the child’s right to health; and the child’s right to education (Committee on the Rights of the Child, General Comment No 14 (2013), 62nd sess, UN Doc CRC/C/GC/14 (29 May 2013), [52]–[79]).

These rights could be limited where the compulsory treatment measures prevent persons with mental illness from residing or spending time with other family, or where children are detained away from family or are prevented from attending school or undertaking other developmentally important activities. However, the rights of children are also promoted by provisions that promote their treatment for and recovery from mental illness. Two notable additional safeguards that are provided for children are that MHT approval is required for ECT to be administered even with consent, and that children cannot be subject to intensive monitored supervision.

Cultural rights

Section 19 of the Charter protects the right of all persons with a particular cultural, religious, racial or linguistic background to enjoy their culture, to declare and practise their religion and to use their language, in community with other persons of that background. In particular, s 19(2)(c) of the Charter provides that Aboriginal people must not be denied the right to maintain their kinship ties.

The compulsory treatment measures may interfere with the ability of people being detained to enjoy their culture or religion in community with others. They could also limit the right if the tenets of a person’s religion is interfered with by the relevant treatment. The Bill contains measures that seek to ameliorate any impacts on culture and cultural practice, including by requiring that people who are subject to restrictive interventions and intensive monitored supervision be provided with the facilities and supplies needed to meet their needs and maintain their dignity. The Bill also requires that consideration of a person’s culture be actively considered as part of the diversity principle in clause 25 and the cultural safety principle in clause 27.

Right to liberty

Section 21 of the Charter protects the right to liberty. The liberty rights in s 21 reflect aspects of the common law right to personal liberty, which has been described as ‘the most elementary and important of all common law rights’ (Trobridge v Hardy (1955) 94 CLR 147, 152). In particular, s 21(2) prohibits a person from being subjected to arbitrary detention, whilst s 21(3) prohibits a person from being deprived of their liberty except on grounds, and in accordance with procedures, established by law. Together, the effect of ss 21(2) and (3) is that the right to liberty may legitimately be constrained only in circumstances where the deprivation of liberty by detention is both lawful, in that it is specifically authorised by law, and not arbitrary, in that it is reasonable or proportionate in all the circumstances.

The right to liberty in s 21 of the Charter is concerned with the physical detention of the individual, and not mere restrictions on freedom of movement (Antunovic v Dawson (2010) 30 VR 355, [72]). The scope of the right extends beyond detention as part of the criminal justice system to protective or preventative forms of detention, including for mental illness. Whether a particular restriction amounts to a ‘deprivation of liberty’ for the purpose of the right in s 21 is a question of degree or intensity (Kracke v Mental Health Review Board (2009) 29 VAR 1, [664]).

The requirement that compulsory mental health assessment or treatment be provided on an inpatient basis, as a result of the risk posed by their mental illness, will limit the person’s right to liberty. However, as explained below, the limitation will occur lawfully and the accompanying safeguards will ensure the limitation is not arbitrary.

Humane treatment when deprived of liberty

Section 22 of the Charter requires that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. The right to humane treatment while deprived of liberty recognizes the vulnerability of all persons deprived of their liberty and acknowledges that people who are detained should not be subject to hardship or restraint other than the hardship or restraint that is made necessary by the deprivation of liberty itself (Certain Children v Minister for Families (2016) 51 VR 473, [172]–[173]).

The relationship between s 22 and s 10 was discussed in Castles v Secretary to the Department of Justice (2010) 28 VR 141, [99]:

Section 22(1) is a right enjoyed by persons deprived of their liberty; s 10(b) applies more generally to protect all persons against the worst forms of conduct. Section 10(b) prohibits “bad conduct” towards any person; s 22(1) mandates “good conduct” towards people who are detained.

As discussed above, the use of the compulsory assessment and treatment measures may involve deprivations of liberty. Where the measures are used in this way, the service responsible for implementing that deprivation must ensure that the needs of those deprived of liberty are provided for so that any such deprivation is humane. In addition to their obligations to act compatibly with the right to humane treatment under the Charter, service providers exercising functions under the Bill must make all reasonable efforts to comply with the Mental Health and Wellbeing Principles and give proper consideration to them when making decisions, and apply the Decision-making Principles for treatment and interventions when making decisions under Chapters 3 and 4 of the Bill. The Mental Health and Wellbeing Principles include the “least restrictive principle” (clause 18) which requires mental health and wellbeing services to be provided with the least possible restriction on rights, dignity and autonomy. The balancing of harm principle (clause 82) with respect to treatment and interventions, requires that compulsory assessment and treatment or restrictive interventions not be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use.

Further, the Bill specifically requires people who are subject to restrictive interventions and intensive monitored supervision to be provided with the facilities and supplies needed to meet their needs and maintain their dignity. In this way, the Bill provides additional direction to service providers with respect to acute circumstances where there is a risk that treatment may not be humane if particular care is not taken with respect to the premises, facilities and supplies made available to a person while they are detained, and ensures that the compulsory treatment measures in the Bill do not limit the right in s 22 of the Charter.

Right to a fair hearing

Section 24(1) of the Charter relevantly provides that a party to a civil proceeding has the right to a fair hearing. The right may be engaged by those clauses of the Bill which provide for decisions relating to the use of compulsory treatment measures to be made by the MHT (ReKracke and Mental Health Review Board (2009) 29 VAR 1, where it was held that s 24 applied to proceedings before the Mental Health Review Board under the Mental Health Act 1986). The Bill requires that the MHT must have regard to the views and preferences of the person who is the subject of the proceedings about the treatment of their mental illness, including as expressed in any advance statement, and of other relevant persons or entities (clause 192) and that applications must be heard and determined by the MHT in a timely way (clause 191). Accordingly, I do not consider that the Bill limits this right.

Reasonableness of limits on rights

Although some of the above Charter rights are engaged or limited in serious ways by the compulsory treatment measures, it is my view that in each case the limits are reasonable and demonstrably justified under s 7(2) of the Charter. In particular, the fact that the right in s 10(c) not to be subjected to medical treatment without full, free and informed consent could be justifiably limited was recognised in the Explanatory Memorandum to the Charter, which stated that:

[U]nder Victorian law there are some well recognised situations where full, free and informed consent to medical treatment is not required. These include where there is an emergency or where a person is incapable of giving consent and consent is provided by a substitute decision-maker. Some procedures are also permitted without consent in accordance with Divisions 4 and 6 of the Guardianship and Administration Act 1986. These procedures will not breach the Charter since they are reasonable limitations under law and can be demonstrably justified in a free and democratic society.

The Bill provides significant detail, guidance and clear safeguards about when and how these powers can be used, which satisfies the lawfulness requirements of s 7(2) and ensures that the limitations on the relevant human rights are proportionate to the purposes that the limitations seek to achieve. The individual factors that are relevant to assessing compatibility are considered in turn below.

Section 7(2)(a): the nature of each of the relevant rights that is potentially limited is discussed above when considering whether rights are limited.

Section 7(2)(b): the purposes of the compulsory assessment and treatment measures in the Bill are to reduce and manage specific risks to health and safety that arise out of mental illness, to both the person concerned and to others, and to enable people with mental illness to receive necessary treatment for that mental illness. These purposes have significant importance to persons with mental illness, their families and carers, and to the whole community. The purposes reflect important societal concerns and are pressing and substantial in a free and democratic society (R v Oakes [1986] 1 SCR 103, 139). In particular, the purpose of the differential treatment of people with mental as opposed to physical illness is to address the particular impacts of mental illness on a person, although they may still have capacity. There can be a material risk of suicide and self-harm where a person is in a state of extreme psychological distress, and in those cases the purpose of differential treatment is to protect the right to life in s 9 of the Charter.

Section 7(2)(c): this factor refers to the means chosen and the way in which a limitation constrains each of the limited rights. The nature and extent of the limitation on each of the rights is discussed above when considering whether rights are limited. I accept that many of the compulsory assessment and treatment measures impose serious and significant limits on Charter rights. However, in all cases the measures have been designed to constrain each of the rights as little as possible by ensuring that the use of the measures is authorised by qualified practitioners based on clear and confined criteria, of limited duration, closely monitored, notified to relevant persons and able to be reviewed. In addition, as noted above, the Bill contains a number of other safeguards designed to ensure that a person subject to compulsory assessment and treatment measures receives information and support necessary to enable them to exercise their autonomy and assert their rights throughout the process, including the requirement to provide appropriate supports to assist a person to make decisions, understand information and communicate their views, the provision of a statement of rights and the assistance of nominated support persons or mental health advocates.

Section 7(2)(d): consideration of the relationship between a limitation and its purpose requires that the measure taken, which limits rights, is rationally capable of achieving its purpose (R v Oakes [1986] 1 SCR 103). I consider that is the case with all of the limitations that may occur as a result of the compulsory assessment and treatment measures. For example, the purpose sought to be achieved by restrictive interventions, which is to protect the person concerned from serious deterioration in their mental or physical health and/or to protect the person or others around them from serious harm, is directly and rationally connected to the intervention. Further, as soon as a measure is no longer necessary, either the authority for that measure ceases, or the measure is required to be withdrawn, which ensures the rights limiting measure does not remain in place for any longer than required. More broadly, the purpose sought to be achieved by the compulsory treatment of persons with mental illness, which is to promote their recovery and wellbeing, is also directly and rationally connected to the limitations on rights that result from such treatment.

Section 7(2)(e): this factor requires consideration of other means of achieving the purpose of the limitation, and whether those other means are equally effective and reasonably available. As discussed above, persons responsible for making decisions with respect to compulsory assessment and treatment measures under the Bill must give proper consideration to the Decision-making Principles for treatment and interventions when making decisions under Chapters 3 and 4 of the Bill. The Mental Health and Wellbeing Principles include the “least restrictive principle” (clause 18) which requires mental health and wellbeing services to be provided with the least possible restriction on rights, dignity and autonomy. In particular, as noted above, an in-patient assessment order, in-patient temporary treatment order or an in-patient treatment order must not be made unless a person cannot be treated in the community and the intensive monitored supervision of a person is only to be used as a last resort and in the least restrictive way possible. Further, as discussed above, built into each of the decision making provisions with respect to compulsory treatment measures are requirements that alternatives have been considered or tried (and in relation to intensive monitored supervision, clause 578 requires that “all less restrictive options have been tried to mitigate the risk and have been found to be ineffective”, not just that they be considered) and that the decision-maker is satisfied that there are no less restrictive means reasonably available. In respect of the use of restrictive interventions and intensive monitored supervision, the potential alternatives, and the reasons why they were considered to be unsuitable, must be documented, so decision makers cannot give mere lip service to this important requirement.

Having regard to all relevant factors, I consider the compulsory assessment and treatment provisions of the Bill are compatible with Charter rights.

Mental health crisis response and transport by authorised persons

Under Chapter 5 of the Bill, police officers and other authorised persons will continue to have powers to take a person into care and control, and transport them for the purpose of assessment or treatment, and to enter and search premises and seize items. These will be referred to as mental health crisis response and transport by authorised powers to ensure that these interactions are distinguished from the law enforcement powers that police also have.

Clause 232 allows for police officers, protective services officers, registered paramedics employed by an ambulance service or other prescribed people to take a person into their care and control in a mental health crisis for the purposes of having them examined, which can involve detaining and transporting them. In order to use the power, the person exercising the power needs to be satisfied that the person appears to have a mental illness and that, because of the person’s apparent mental illness, they need to be taken into care and control to prevent serious and imminent harm to the person or to another person.

The Chapter also provides for powers of entry, search, seizure and bodily restraint in the circumstances above and with respect to people who are required to be taken to or from any place under the Bill. Clause 246 allows authorised persons to enter any premises (using reasonable force to do so if necessary) where they are satisfied on reasonable grounds that the person may be found there and to take that person into their care and control. Two forms that care and control may take are detention and transportation. Clause 247 allows for the search of a person and clause 248 requires that the search must be conducted in a way that provides reasonable privacy for the person and must be the least invasive kind of search practicable in the circumstances and children must be searched in the presence of a parent or another adult. Clause 249 allows for the seizure of things found during the search of a person if the authorised person is reasonably satisfied that the thing presents a danger to the health and safety of the person or another person. Clause 250 allows for the use of bodily restraints on a person taken into care and control where all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable, and the use of that restraint is necessary to prevent serious and imminent harm to the person or another person.

There are also powers to apprehend and transport people who are absent without leave from an in-patient facility in clauses 221, 608 and 609.

Clause 297 authorises the chief psychiatrist, or an authorised officer at the chief psychiatrist’s direction, to enter the premises of a clinical mental health service provider at any time for the purpose of conducting an investigation or clinical review or performing any other function of the chief psychiatrist under the Bill (or a custodial setting in the case of an investigation or clinical review that relates to the provision of mental health and wellbeing services in that custodial setting). In such circumstances, the chief psychiatrist, or an authorised officer at his or her direction, is authorised to do a range of things reasonably necessary for the function being performed, including to require a staff member to produce documents or answer questions (clauses 297–298). Clause 496 makes similar provision in relation to the Mental Health and Wellbeing Commissioner. It authorises authorised investigators to enter the premises of service providers or a custodial setting (where an investigation relates to services in that custodial setting) to inspect and make enquiries and clause 497 provides for the Mental Health Commission to issue written notices requiring the production of documents and the attendance of witnesses. Clause 511 preserves the privilege against self-incrimination in connection with investigations by the Mental Health Commissioner. Clause 748 preserves the privilege in connection with and the provision of information or the doing of any thing that a person is required to do under the Bill.

The crisis response and transport powers, and the inspection and investigation powers of the chief psychiatrist and the Mental Health Commission are likely to either engage or limit the following Charter rights: equality (s 8); cruel, inhuman and degrading treatment (s 10(b)); freedom of movement (s 12); privacy (s 13(a)); protection of families and children (s 17); property (s 20); liberty (s 21); humane treatment when deprived of liberty (s 22).

Equality

The crisis response and transport provisions may potentially amount to direct discrimination on the basis of disability. The provisions treat people with mental illness differently from other people on the basis of their mental illness. Although the aims of the provisions are beneficial and aim to promote mental health and wellbeing, these specific provisions could be considered unfavourable, notwithstanding that aim.

Cruel, inhuman or degrading treatment

It is highly unlikely that the crisis response and transport powers could limit the right in s 10(b), unless they were exercised unreasonably, which would make the exercise of power unlawful in any event. These powers are “care and control” powers, and are granted for beneficial purposes. This will be relevant to the determining the reasonableness of any exercise of the power.

Freedom of movement

The crisis response and transport powers, and the inspection and investigation powers of the chief psychiatrist and the Mental Health Commissioner are likely to limit people’s freedom to move about, including by detaining them, transporting them or requiring them to attend a particular location as a witness.

Rights to privacy, family and home

Whilst the crisis response and transport powers, and the inspection and investigation powers of the chief psychiatrist and the Mental Health Commissioner, engage the right to privacy in my view they do not limit it. The right in s 13(a) of the Charter will only be limited where an interference with privacy is unlawful and arbitrary. Any interference with privacy under these clauses will be lawful, by virtue of the clauses themselves which are clear and appropriately circumscribed, and not arbitrary, in the sense that they are also proportionate to the legitimate aims sought to be achieved by those clauses.

Protection of families and children

These rights could be limited by the use of crisis response and transport powers against children. Clause 248 requires that if the person being searched is of or under the age of 16 years, they must be searched in the presence of their parent, or if it is not reasonably practicable for a parent to be present, another adult.

Property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. There are three elements to this right:

(a) the interest interfered with must be ‘property’, which includes all real and personal property interests recognised under the general law;

(b) the interference must amount to a ‘deprivation’ of property, that is, any ‘de facto expropriation’ by means of a substantial restriction in fact on a person’s use or enjoyment of their property (PJB v Melbourne Health(Patrick’s Case) (2011) 39 VR 373, [89]); and

(c) the deprivation must not be ‘in accordance with law’, which involves a requirement that the law must be adequately accessible and formulated with sufficient precision to enable the person to regulate their conduct.

In my view, although it is possible that the seizure of some document or thing pursuant to clause 249 may constitute a substantial restriction on a person’s use or enjoyment of their property, any such deprivation of property will satisfy the requirement that it be in accordance with law and the right will therefore not be limited.

Right to liberty

The crisis response and transport powers will limit the right to liberty by allowing for temporary detention of a person in order to prevent serious and imminent harm to the person or another person, although the limitation will occur lawfully and the purposes of that temporary detention would ensure the limit is not arbitrary. Clause 229 provides that in exercising a power under Ch 5, an authorised person must give proper consideration to the mental health and wellbeing principles. And clause 230 specifically requires that so far as is reasonably practicable in the circumstances, the exercise of these powers by an authorised person must be exercised in the least restrictive way possible. Clause 228 requires that, as far as reasonably practicable in the circumstances, these powers are to be exercised by an authorised health professional or, if that is not reasonably practicable in the circumstances, to be informed by another authorised person who is an authorised health professional or the advice of a registered medical practitioner, an authorised mental health practitioner, a registered nurse or a registered paramedic. Clause 234 requires that arrangements are made for the person to be examined as soon as practicable, this may be by arranging examination at or near the place, transferring a person’s care and control, or transporting them to another place for examination, so that this non-therapeutic period of detention is of very limited duration. Although it is not of itself therapeutic, temporary detention in a mental health crisis including for the purposes of transportation is necessary in order for examination to occur in an appropriate location.

Humane treatment when deprived of liberty

As discussed above, the crisis response and transport powers may involve deprivations of liberty. Where the powers are used in this way, the relevant officers must ensure that the needs of those deprived of liberty are provided for so that any such deprivation is humane. The requirement that examination or transport occur as soon as practicable will ensure that any deprivation of liberty is brief. It is also unlikely that the power to take into care and control, search and seizure powers could limit the right in s 22, unless they were exercised unreasonably, which would make the exercise of power unlawful. These powers are “care and control” powers, and are granted for beneficial purposes.

Reasonableness of limits on rights

Although some of the above Charter rights are engaged or limited in serious ways by the crisis response and transport powers, and the inspection and investigation powers of the chief psychiatrist and the Mental Health Commissioner, it is my view that in each case the limits are reasonable and demonstrably justified under s 7(2) of the Charter. The bill provides significant detail, guidance and clear safeguards about how these powers can be used, which satisfies the requirements of s 7(2). The chief psychiatrist (clause 268) and the Mental Health Commissioner (clause 414) and those exercising powers to take people into care and control or transport them under the Bill will be required to give proper consideration to the mental health and wellbeing principles. The individual factors that are relevant to assessing compatibility are considered in turn below. These powers have been amended in order to implement the Royal Commission’s recommendation that crisis intervention must be led by health professionals and not by the police. Under the current Act the police may apprehend a person and take them for examination. Police involvement in these circumstances can sometimes be frightening to a person with mental illness and can exacerbate the symptoms of their illness, through no fault of the police. This part allows for more sensitive responses, where that is possible, which will ensure interventions remain proportionate.

Section 7(2)(a): the nature of each of the relevant rights that is limited is discussed above.

Section 7(2)(b): the overarching purpose of the Bill is to enable people with mental illness to be treated for that mental illness, to achieve recovery and wellbeing and to reduce and manage specific risks to health and safety that arise out of mental illness, which has significant importance to the whole community. In furtherance of that purpose, the apprehension, search and seizure powers have an interim purpose of preventing serious and imminent harm to the person or another person and arranging for the person to be examined, either by arranging for an examination at or near the place the person was taken into care and control, or by transporting the person to a place where they may be examined. The chief psychiatrist’s and the Mental Health Commissioner’s inspection and investigation powers further the Bill’s purposes by ensuring that services and others with powers under the Bill are complying with the Bill and are performing their roles diligently and humanely.

Section 7(2)(c): the nature and extent of the limitation on each of the rights is discussed above when considering whether rights are limited. I accept that many of the limits are serious limits on Charter rights, however in most cases the limits imposed by the crisis response and transport provisions will be temporary and of short duration. The provisions have been designed to constrain each of the rights as little as possible.

Section 7(2)(d): the relationship between the limitations on rights and the purpose sought to be achieved by the compulsory treatment measures is a direct one. All of the limits are rationally capable of achieving their purposes and are orthodox means of doing so.

Section 7(2)(e): clause 228 sets out principles regarding how these apprehension, search and seizure powers are to be exercised and authorised persons exercising these powers will be required to give proper consideration to the mental health and wellbeing principles. Further, as discussed above, built into the “care and control” provisions are mandatory requirements that set an appropriately high threshold before those powers can be used.

I therefore consider that the crisis response and transport powers, and the Mental Health Commissioner’s inspection and investigation powers, are compatible with Charter rights.

Information collection, sharing and confidentiality provisions

The Bill contains a number of clauses allowing for the collection and sharing of information—some of it sensitive health information about a person. The Bill also contains various provisions ensuring the maintenance of confidentiality and preventing the sharing of information.

Clause 258 provides for the Health Secretary to enter into information sharing agreements with public sector bodies for specified purposes. Clause 259 allows the Health Secretary to collect a person’s unique identifier (defined in clause 3 to have the same meaning as in the Victorian Data Sharing Act 2017) for the purposes of performing the Health Secretary’s functions, and clause 505 requires that collection to be reasonable in the circumstances. Clause 525 allows the Mental Health Commissioner to collect health information, personal information, identifiers and unique identifiers, as relevant to other Victorian legislation that regulates privacy and the collection and sharing of information. Clause 671 allows the Victorian Collaborative Centre for Mental Health and Wellbeing to collect health information, personal information, identifiers and unique identifiers, to the extent necessary to conduct research. Clause 714 allows Youth Mental Health and Wellbeing Victoria to collect the same types of information to the extent necessary to perform its functions.

The complaints handling and investigations functions of the Mental Health and Wellbeing Commission engage Charter rights in a number of ways. Clause 448 allows the Commission to refer complaints to others without consent. Clause 462 allows the Commission to require a service to produce any document or other evidence relating to the subject of a complaint, including health information, and clause 521 does the same with respect to other types of information. Clauses 463 and 519 provide that a party to a complaint and the Mental Health Commissioner must not disclose conciliation matters. Clauses 517 and 518 prevent the disclosure of information obtained during an investigation, complaint data review or complaint resolution process. Clause 520 allows the Mental Health Commissioner to decide that particular identifying information is not to be disclosed. Clauses 511 and 748 preserve the privilege against self-incrimination.

Part 17.1 regulates and provides for the disclosure of health information, both with and without consent, for specific purposes including to and between services, to the MHT, the chief psychiatrist and the Health Secretary. Division 1 sets out new information sharing principles set out in clauses 722–726. These include, in clause 722, that the use or collection of information about a person receiving mental health and wellbeing services should, amongst other things, enhance their ability to access, understand and self-manage their information, support their autonomy and empowerment and ensure they are provided with safe, high-quality treatment, care and support. By clause 721, an entity that makes a decision, performs a function or exercises a power related to the disclosure, use or collection of health information or personal information under the Bill must give proper consideration to the information sharing principles.

Clause 730 permits a mental health and wellbeing service provider or people associated with the provider (including staff and contractors) to disclose a person’s health information without their consent for various purposes, including where disclosure is reasonably necessary for the service provider to perform functions under the Bill. Clause 729 allows for people to consent to the disclosure of their health information to family, a carer or supporter, during the course of receiving a service. Clause 732 allows a service provider not to disclose a person’s health information to family, a friend or supporter in certain circumstances, including that the disclosure poses a threat to the life or health of any person or could unreasonably impact on the privacy of any person.

Division 4 of Pt 17.1 provides for information sharing between mental health and wellbeing service providers and specified service providers (such as a provider of alcohol and drug treatment services funded by the State or a provider of public or community housing services funded by the State), and Ambulance Victoria and other prescribed emergency service providers. Clause 727 sets out the purpose of the electronic health information system, including to maintain the records of people who receive services from service providers. Clause 728 provides in what circumstances information from the electronic health information system can be used and by whom. Division 5 of Pt 17.1 creates offences relating to the misuse or unauthorised disclosure of information on the electronic health information system.

Clauses 387 and 746 make it an offence to give false or misleading information under the Bill and clause 515 makes it an offence to make a false or misleading statement.

The information collection, sharing, confidentiality and misleading information provisions are likely to either engage or limit the following Charter rights: privacy (s 13(a)); and freedom of expression (s 15(2)).

Rights to privacy, family and home

Whilst the information collection and sharing provisions engage the right to privacy, in my view, they do not limit it. Any interference with privacy under these clauses will be lawful, by virtue of the clauses themselves which are precise and appropriately circumscribed. They are also not arbitrary, in the sense that they are proportionate to the important aims sought to be achieved by those clauses which include, broadly, ensuring that relevant people and entities have the information needed for the provision of mental health services and the protection of persons with mental illness and those around from serious harm, and ensuring that complaints are considered by the appropriate body so that mental health services are maintained at a high standard.

Freedom of expression

The right to freedom of expression in s 15(2) of the Charter extends to the freedom to seek, receive and impart information and ideas of all kinds, including orally, in writing, in print, by way of art or in another medium. The right contains an internal limitation in s 15(3)(b), which permits lawful restrictions that are reasonably necessary for the protection of public order, public health or public morality. The internal limitation may limit the scope of the right, in the same manner as the internal limitations in s 13(a), or it may indicate the kinds of limits that will be considered reasonable under s 7(2).

The right may be limited by the confidentiality or offence provisions that require confidentiality or prevent the sharing of particular information. However, in so far as these provisions fall within the internal limitation in s 15(3)(b), which provides that freedom of expression is subject to lawful restrictions reasonably necessary for, among other things, the protection of public health, the right might not be limited.

Reasonableness of limits on rights

If the rights in s 13(a) or s 15(2) are limited, it is my view that in each case the limits are reasonable and demonstrably justified under s 7(2) of the Charter. The Bill provides significant detail, guidance and clear safeguards about how these powers can be used, which satisfies the requirements in s 7(2).

The individual factors that are relevant to assessing compatibility are considered in turn below.

Section 7(2)(a): the nature of each of the rights is discussed above.

Section 7(2)(b): the overarching purpose of the Bill is to enable people with mental illness to be treated for that mental illness, to achieve recovery and wellbeing and to reduce and manage specific risks to health and safety that arise out of mental illness, which has significant importance to the whole community. The information gathering and confidentiality provisions further the Bill’s purposes by ensuring that appropriate services can be provided, and risks to the safety of the person concerned and others around them can be managed, and that information is only shared to the extent reasonably necessary for that purpose.

Section 7(2)(c): the nature and extent of the limitation on each of the rights is discussed above when considering whether rights are limited. The extent of the limitation on these rights is also minimised by the requirement in clause 721 that any entity that makes a decision, performs a function or exercises a power related to the disclosure, use or collection of health information or personal information under the Bill must give proper consideration to the information sharing principles.

Section 7(2)(d): the relationship between the limitations on rights and the purpose sought to be achieved by the information sharing and confidentiality provisions is a direct one. All of the limits are rationally capable of achieving their purposes and are orthodox means of doing so.

Section 7(2)(e): the provisions have been designed to balance the right to privacy and the right to freedom of expression against each other, as they compete with each other in some circumstances. The provisions have been designed to ensure that rights are only limited to the extent reasonably necessary and that the balance struck between competing rights is appropriate to the specific power or function.

I therefore consider that the information sharing and confidentiality provisions, to the extent that they limit any rights, are compatible with those rights because they fall within the internal limitations on the rights and, in any event, satisfy the requirements of s 7(2).

Offence provisions

The Bill contains a number of offence provisions in clauses 386–388, 463, 498, 513–515, 517, 735–738, 746 and 747. Clauses 386, 483, 489 and 498 contain “reasonable excuse” provisions and clauses 738 and 747 contain “lawful authority” provisions. Clause 717 requires a person to give true answers to questions asked by an auditor, and it is an offence not to do so, which may require a person to incriminate themselves with respect to other offences in the Bill. However, the clause also provides that the answers will not be admissible in evidence against the person in any criminal proceeding other than a proceeding under that clause.

Clauses 511 and 748 preserve the privilege against self-incrimination in connection with investigations by the Mental Health Commissioner and the provision of information or the doing of any other thing that a person is required to do under the Bill.

In my view, the offence provisions engage but do not limit the fair hearing and criminal process rights in ss 24 and 25 of the Charter.

Fair hearing and criminal process rights

Section 24 of the Charter provides that a person charged with a criminal offence (or a party to a civil proceeding) has the right to a fair hearing. Section 25 of the Charter protects a number of rights that apply to a person who has been charged with a criminal offence. Section 25(1) protects the right of a person charged with a criminal offence to be presumed innocent until proven guilty according to law. The right to silence is an inherent part of the presumption, which is also protected by s 25(2)(k). These rights reflect the common law presumption of innocence and require the prosecution to prove the guilt of an accused beyond reasonable doubt and without using compelled testimony against a person.

Provisions that merely place an evidential burden on the defendant (that is, the burden of showing that there is sufficient evidence to raise an issue) with respect to any available exception or defence are consistent with the right to a fair hearing in s 24(1) of the Charter and the presumption of innocence in s 25(1) of the Charter (because the prosecution still bears the legal burden of disproving that matter beyond reasonable doubt).

Section 72 of the Criminal Procedure Act 2009 applies to summary hearings and provides that where an Act creates an excuse, an accused who wishes to rely on the excuse bears an evidentiary burden (and not a legal burden) in relation to that excuse. A person accused with an offence under any of the above clauses of the Bill would therefore not bear a legal burden to prove that an excuse applied. Reasonable excuse provisions are generally interpreted as imposing only an evidential burden and not a legal burden on an accused with respect to the excuse, and for that reason they are not considered to limit the right to the presumption of innocence in s 25(1) of the Charter.

Similarly, s 130 of the Magistrates’ Court Act 1989 applies to summary offences that provide exceptions, exemptions, provisos, excuses or qualifications, and only requires the defendant to point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception, exemption, proviso, excuse or qualification. The burden remains on the prosecution to disprove those facts beyond reasonable doubt.

I therefore do not consider that the rights in ss 24 or 25 of the Charter are limited by any of the offence provisions.

Provisions that require people to perform work

Some clauses in the Bill require people or entities to perform work. Clause 295 allows the chief psychiatrist to give a direction to a service provider to improve the services provided and to address any aspect of their services. Clause 272 requires service provider staff to provide reasonable assistance to the chief psychiatrist or their authorised officer and clause 524 requires the same for the Mental Health and Wellbeing Commission. These clauses may engage, but do not limit the prohibition on forced work (s 11).

Freedom from forced work

Section 11(2) of the Charter recognises that people must not be made to perform forced or compulsory labour. Section 11(3) of the Charter clarifies that ‘forced or compulsory labour’ does not include work or service that forms part of normal civil obligations. The United Nations Human Rights Commission has expressed the view that to qualify as part of ‘normal civil obligations’, the work or service must be provided for by law, must be imposed for a legitimate purpose and must not have any punitive purpose or effect (see Faure v Australia, Communication no. 1036/2001, UN Doc, CCPRC, 85, D/1036/2001 (2005), [4.11] and [7.5]). I consider that the requirements imposed under the Bill would likely constitute normal civil obligations, and that therefore this right is not limited.

The Hon James Merlino MP

Deputy Premier

Minister for Education

Minister for Mental Health

Second reading

Mr MERLINO (Monbulk—Minister for Education, Minister for Mental Health) (10:20): I move:

That this bill be now read a second time.

In March 2021, the Royal Commission into Victoria’s Mental Health System released its final report, setting out an ambitious 10-year plan to transform the face of mental health and wellbeing services in Victoria.

As I said at the handing down of that report during a historic special sitting of Parliament, we know that our mental health system is broken and must be rebuilt from the ground up. The royal commission’s report gave us the blueprint for delivering the biggest mental health reform in a generation, ensuring that all Victorians can access the mental health care that they deserve.

This bill is a fundamental part of the reform journey on which we have embarked. It will give effect to the royal commission’s recommendation for a brand new mental health and wellbeing act, which is essential to promote good mental health and wellbeing for all Victorians and reset the legislative foundations of our mental health and wellbeing system.

I would like to begin by acknowledging our partners and collaborators, without whom we could not have progressed this legislation, nor indeed any of the royal commission’s vision.

First, to those who have lived and living experience of mental illness or psychological distress, whether as consumers of mental health and wellbeing services or as family, carers and supporters: thank you for the valuable insights, awareness, and opportunities you have generously shared with us as we embrace this systemic and cultural change. Thank you.

The bill will enable the views, preferences and values of people living with mental illness or psychological distress, families, carers and supporters to be at the forefront of everything we do, centred in this reform, true to the vision of the royal commission.

I would also like to acknowledge our mental health workforce. In particular, the clinical, community and support staff in our public mental health system who have faced the additional challenges imposed by the pandemic head-on. You are true heroes, and I thank you on behalf of the Victorian community.

Working alongside our dedicated mental health and wellbeing workforce, we will create the service system envisaged by the royal commission, providing world-leading mental health and wellbeing services for all Victorians.

The proposed bill has been informed by the findings of the royal commission, an expert advisory group appointed to support the bill’s development, and extensive feedback through engagement in 2021 and this year. We received 283 written submissions to the discussion paper released last year, along with hundreds of direct engagements with stakeholders and sector leaders throughout the past 12 months. Since the beginning of the bill’s development, the level of public engagement on this work demonstrated high community expectations for this bill and how eagerly it is anticipated.

The royal commission said that a new mental health and wellbeing act’s purpose should be ‘to promote good mental health and wellbeing in Victoria’ and the new legislative objectives should reflect the aspirations of the future mental health and wellbeing system. These new objectives include frameworks for supported decision-making, recovery‑oriented practice and human rights protections.

I would like to emphasise the word ‘aspiration’. This is an unapologetically aspirational bill.

But it would be naive to expect that the reforms of the royal commission can be implemented overnight. It took us so many years of underinvestment to get the broken system described by the royal commission, and it will take at least a decade of unwavering commitment to this reform to build the system that Victorians deserve.

Legislation alone cannot mend a broken mental health system, and this bill will not—and cannot—be all things to all people. But my sincere hope is that it represents a significant leap forward in the legal foundations of this work, building new system leadership, establishing a wellbeing and rights-based approach to mental health and centring voices of lived experience.

The royal commission saw as imperative that new legislation be passed this year, and they were absolutely right. This bill will establish key elements of the system architecture, such as the Mental Health and Wellbeing Commission and regional boards, to guide the system across the reform journey ahead.

During our engagement, some stakeholders expressed cynicism that the new legislation will achieve the royal commission’s vision without significant investment in implementation and long-term service development. They too are absolutely right.

I consider that there are three core foundations necessary to achieve success in this reform. They are workforce, legislation, and large-scale sustainable investment. Without a strong commitment to all three, we cannot hope to achieve the vision set out by the royal commission.

We are well on our way to developing and sustaining the future mental health and wellbeing workforce. Between the last three state budgets, the government has invested over $600 million into workforce pipelines and retention. We will deliver over 2500 more mental health professionals across the forward estimates, precisely what our December Mental Health and Wellbeing Workforce Strategy told us was necessary.

Today we deliver on the second critical component, a new legislative framework that delivers on the vision for rights-based mental health and wellbeing laws which reflect the diverse needs of our communities and creates the structures that will hold government to account on providing the high-quality, compassionate public mental health system of the future.

And importantly, we have already implemented the recommendation of the royal commission to create a mental health and wellbeing levy, which ensures an ongoing, sustainable funding source to keep mental health services accessible, responsive and strong. Without that levy, there would be a $3.7 billion hole in mental health funding, which would mean beds without nurses, community centres without social workers, no new facilities and vulnerable Victorians still falling through the cracks in an underfunded system.

We have heard from some that we are moving too slowly—that the directions outlined by the royal commission must be acted on as soon as possible.

On the other hand, we have also heard from some in the sector that we are moving too fast to change a public mental health system that is already operating under huge pressure.

I believe that we need to strike a balance. And I firmly believe the royal commission was right in asking us to deliver this bill this year.

This is an enabling bill—it sets up the new system architecture, alongside the necessary powers and functions for entities and others in the new system.

One lesson that we have learned from feedback about the implementation of the 2014 act is that more investment is needed to support transition to new legislation, especially in the context of an already overstretched system.

Recognising this need for investment, $29 million was allocated in this year’s state budget to support implementation of this bill, once passed. There will be 23 expert practitioners and change leaders embedded within area mental health services. We will develop and deliver comprehensive training on the new legislation across the mental health sector and support for consumers, carers, families, and supporters to understand the act and their rights under it. We are providing dedicated funding to peak bodies, including the Victorian Mental Illness Council (VMIAC) and Tandem, to create materials for consumers and carers, and resources to help navigate the new legal system from next year onwards.

The new legislation will commence no later than 1 September 2023, giving us at least 12 months after passage of this bill to enable the service system to prepare, as well as for our reform investment to mature, alleviating some of the current pressure on providers and clinicians.

I turn now to a brief overview of the bill. This bill, consistent with the recommendations of the royal commission, repeals and replaces the Mental Health Act 2014.

Its operation sits alongside the Victorian Charter of Human Rights and Responsibilities as outlined in the statement of compatibility I have tabled. The obligations of the charter will apply to entities and service providers under the bill.

The introduction of modernised rights-based mental health principles will guide service providers and decision-makers to support the dignity and autonomy of people living with mental illness or psychological distress. For the first time, mental health legislation will include a ‘diversity of care’ principle, a ‘least restrictive care’ principle and a principle to specifically call out the health, wellbeing and autonomy of children and young people.

This important shift in focus will ensure that our legislative foundations reach beyond merely authorising and regulating the use of compulsory treatment and restrictive interventions. We are setting out a vision for the future of mental health and wellbeing services in Victoria—one where lived experience voices are at the centre and mental health professionals are supported to deliver on world-class care in facilities that actually help people recover.

Importantly, the bill also includes a statement of recognition to acknowledge the Victorian government’s commitment to Aboriginal self‐determination in achieving positive health outcomes and delivering health services that cater to the unique needs of Aboriginal Victorians.

The inclusion of the statement will progress a key reform priority of the Aboriginal Health and Wellbeing Partnership Forum to enshrine commitments to Aboriginal self-determination in Victorian government health statutes for the first time.

The bill includes measures to increase the uptake of safeguards that promote supported decision-making and the agency and autonomy of people living with mental illness. It also establishes in legislation an ‘opt-out’ mental health advocacy service, to better support people subject to compulsory treatment orders navigate both the clinical mental health system and the legal system that surrounds it.

Significantly, the bill establishes key new entities and offices for the governance and oversight of the mental health and wellbeing system. This includes the new Mental Health and Wellbeing Commission, regional mental health and wellbeing boards, regional and statewide multiagency panels, and the chief officer for mental health and wellbeing.

The regional mental health and wellbeing boards will provide a valuable opportunity to capture the voices of local communities and be guided by the needs in commissioning mental health and wellbeing services in each of the eight regions. This will shape implementation of exciting new developments such as the 50 to 60 local adult services, infant child and family hubs and expansion of area mental health services.

The royal commission also recommended the establishment of a new independent oversight body—the Mental Health and Wellbeing Commission—to provide statewide monitoring of the mental health and wellbeing system.

The bill establishes the commission as an independent statutory body reporting directly to Parliament and comprising a chair commissioner and three commissioners to be appointed by Governor in Council. The commission will include people with lived experience of mental illness or psychological distress and with lived experience as a family member, carer or supporter.

We have heard from stakeholders and community about how important it is that the commission is not a ‘toothless tiger’.

The commission will incorporate the existing complaints function of the Mental Health Complaints Commissioner and have a suite of broader powers, including an ‘own motion’ investigation power. For the first time, carers and families will be able to make complaints directly to the commission in circumstances where their own treatment has been subpar.

The commission will be empowered to hold government to account for the performance, quality and safety of the mental health and wellbeing system; the implementation of recommendations made by the royal commission; and ensuring the mental health and wellbeing system supports and promotes the health and wellbeing of consumers, families, carers and supporters and the mental health and wellbeing workforce.

The commission will also report on non-compliance with the act and report to the secretary any matters arising in relation to a mental health and wellbeing service that pose a serious risk of harm to a person or community.

Further, in line with the rights-based framing of the act, the commission will promote, support and protect the rights of consumers, families, carers and supporters.

And it will report directly to the Parliament as it sees fit.

Excitingly, the bill also establishes a new statutory entity, Youth Mental Health and Wellbeing Victoria (YMHWV).

We know that since the royal commission’s report, the ongoing impacts of the pandemic have created real and enduring challenges for our children and young people—in some ways they have felt the impacts the hardest. There is an urgent need to expand the work of the royal commission and provide system-wide leadership in youth mental health—and to give agency to the voices of young Victorians to share their mental health and wellbeing experience and help us develop the services that will help them live their best lives.

This new entity will champion the voice of young people, including young people with lived experience, on its governance board. The entity will also be advised by a youth council, made up of young Victorians with diverse backgrounds and experience.

Youth Mental Health and Wellbeing Victoria will support strong strategic partnerships with specific youth mental health service providers not already regulated as public health services or public hospitals in Victoria and oversee those services to ensure safe and high-quality care for young people.

It is proposed that Orygen will be the inaugural partner, providing services within the west and north-west metropolitan regions. This model will complement our existing youth mental health services statewide and not overlap with the important work already underway in other services across Victoria.

The royal commission also recommended that the statutory provisions relating to compulsory assessment and treatment be ‘simplified and clarified’ such that they are no longer the defining feature of Victoria’s mental health laws. However, no firm recommendations were made as to specific legislative changes to achieve this objective.

The final report recognised that, for some people, the experience of compulsory treatment has been a damaging and traumatic one. One of the consequences of the current broken system has undoubtedly been an over-reliance on the use of compulsory treatment to provide people with help and support when they are at their lowest ebb.

The royal commission has therefore called for a reduction in the use of compulsory treatment and measures to mitigate against its impact, though it did not recommend an end to compulsory treatment altogether. This is because there may be times when medical professionals and psychiatrists are obligated to take action to prevent harm—including at times making difficult treatment decisions against people’s will and preferences.

The royal commission’s final report set a target for the elimination of restrictive interventions (including seclusion and restraint) within the next 10 years. In doing so, they recognised that much of the work to reduce the rates and impacts of restrictive interventions will involve the implementation of broader system reform, as well as significant practice and culture change and sustainable sector investment to improve outcomes for all consumers.

Importantly, the bill acknowledges that restrictive interventions offer no inherent therapeutic benefit and highlights the aim of elimination within 10 years. It’s an ambitious goal, but this is an ambitious bill, and we must do better for our must vulnerable Victorians.

Whilst this bill achieves these important steps forward in safeguarding the use of restrictive interventions, there is a lot more work to do before we have the mental health and wellbeing system that protects the rights and dignity of all consumers, their families and carers.

Through engaging with the sector and community, one theme we heard very strongly was a need to delve deeply into the laws around compulsory treatment and restrictive interventions. Key stakeholders including VMIAC, Tandem, the Royal College of Psychiatrists and the AMA all called for more time to work through these complex issues, outside the tight time frames for introduction of this bill. For this reason, we announced in December that an independent review panel would be established to examine best practice in modernising these laws for a future amending bill.

The review will also consider the related issue of how the legislation might more closely align with personal treatment decision-making laws—such as the Guardianship and Administration Act 2019 and the Medical Treatment Planning and Decisions Act 2016. The review significantly brings forward consideration of these decision-making laws from the five- to seven-year time frame set by the royal commission, delivering a better outcome for consumers and advocates.

The terms of reference for the review will be developed collaboratively with consumers, families, carers, supporters, workers in the sector and service providers using co-design principles.

I am pleased to advise the house that the Honourable Justice Shane Marshall AM will lead the review. Justice Marshall was a Federal Court judge for 20 years and is currently an Acting Judge of the Tasmanian Supreme Court. He has been a strong educator and advocate on mental health issues, particularly those faced within the legal profession, and informed by lived experience.

Justice Marshall will be joined on the panel by eminent psychiatrist, Professor Richard Newton; lived experience consumer representatives, Ms Flick Grey and Ms Erandathie Jayakody; and lived experience carer representative, Ms Lisa Sweeney.

The independent review panel will commence its review in October this year once its terms of reference are finalised. The panel will report back to government in 12 months and its recommendations will form the basis of amending legislation.

I would like to extend my gratitude to the members of the panel for taking on this important work.

The royal commission recommended that emergency service responses to people experiencing a mental health crisis in the community are led, wherever possible, by health professionals rather than police.

Following extensive consultation with emergency services, the lived experience community and our police and ambulance partners, the provisions of the 2014 act have been redesigned to better protect the rights of people experiencing mental health crisis in the community.

To enable this new response, some health professionals will now be authorised to take people to be examined for an assessment order.

All authorised persons are obliged to give proper consideration to, and make all reasonable efforts to comply with, the mental health principles of this bill in addition to two additional principles specifically: powers must be used in the least restrictive way possible and, wherever practicable, led by a health professional.

These principles are critical for the cultural change envisioned by the royal commission, including ensuring compulsory treatment and restrictive interventions are only used as a last resort and people in this particularly vulnerable situation are given support to make their own decisions, including about assessment and treatment.

This means people must be provided with alternatives—for example, assistance from peer workers. Peer workers will never be asked to use force or coerce a person, but they are crucial in helping people voluntarily access treatment, support and care. Ensuring that people can easily access the support and care they need, without the need to utilise these powers, is the best outcome and the ultimate goal of these reforms.

The diversity of the workforce is really critical—not only in developing a health-led response to mental health crisis but also across the whole spectrum of care. We are expanding the footprint of the mental health and wellbeing system, which means bringing in multidisciplinary teams to cater to a breadth of treatment and support needs. In recognition of this, we have included a new definition—mental health and wellbeing professional—to better recognise the diverse workers who make up our new system. This definition explicitly calls out professionals such as registered psychologist, registered paramedic and counsellor of a prescribed class as persons who perform duties in connection with mental health and wellbeing services.

Because at the end of the day, the beating heart of this new system is undoubtedly our compassionate, dedicated workforce. Without mental health nurses, psychiatrists, social workers and peer support workers we could not help a single Victorian improve their mental health and wellbeing. We are all indebted to these people who dedicate their careers and lives to others, and who are, every day, helping us build a new mental health and wellbeing system from the ground up.

Before I conclude, I wish to acknowledge the hard work of the many people who have contributed to the development of this bill.

I am grateful to those people and organisations who took the time to respond through the engagement process last year and more recently in a more targeted stakeholder consultation.

I would also like to acknowledge the contribution of the expert advisory group who carefully considered the policy positions and advised on all aspects of this bill from first principles onwards.

And I would especially like to thank the hardworking teams within the Department of Health and the Office of the Chief Parliamentary Counsel for the preparation and drafting of this bill to meet the rigorous time frame set by the royal commission.

I am proud to bring to this house a bill that establishes, in law, the vision of the royal commission and puts people living with mental illness or psychological distress, families, carers and supporters at the centre of our entire reform program, delivering better mental health and wellbeing for all Victorians.

I commend the bill to the house.

Ms KEALY (Lowan) (10:44): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 7 July.