Thursday, 11 September 2025

Mental Health Legislation Amendment Bill 2025

Statement of compatibility

Danny PEARSON (Essendon – Minister for Economic Growth and Jobs, Minister for Finance) (11:07): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Mental Health Legislation Amendment Bill 2025:

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 Legislation Amendment Bill 2025 (the Bill).

The Bill, as introduced to the Legislative Assembly, engages the Charter rights to privacy (s 13(a)), freedom of expression (s 15), humane treatment when deprived of liberty (s 22(1)), and recognition and equality before the law (s 8). To the extent that the Bill limits any Charter rights, such limits are reasonable and justifiable in accordance with section 7(2) of the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The objective of the Bill is threefold.

The first is to give the Mental Health Tribunal additional functions which are currently fulfilled by the Forensic Leave Panel. These functions will be undertaken by a new forensic division established within the Mental Health Tribunal. This forensic division will hear applications for limited on ground and limited off-ground leave from forensic patients and residents to enable them to take part in a range of activities in the community to aid their rehabilitation and community reintegration and to hear appeals from forensic patients and residents regarding refusal of special leaves of absence. These applications are made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA). Further, the forensic division will review decisions of the chief psychiatrist or authorised psychiatrist regarding transfers of forensic patients from one designated mental health service to another, under the Mental Health and Wellbeing Act 2022 (MHWA). The procedures and membership of the Mental Health Tribunal are amended to accommodate its new functions.

The second is to broaden the users of the statewide electronic health information system to enable information sharing reforms recommended by the Final Report of the Royal Commission into Victoria’s Mental Health System (see recommendation 62). It also enables the sharing of information between the electronic health information system (established under the MHWA) and the Electronic Patient Health Information Sharing System (EPHISS) under the Health Services Act 1988.

The third is to provide consequential amendments following from those two objectives, and minor other amendments. These include the amendment of the Freedom of Information Act 1982 to exempt documents of the Mental Health Tribunal’s forensic division related to their quasi-judicial functions; and to clarify that the Mental Health and Wellbeing Commissioner’s employees can disclose information for the purpose of preventing serious harm.

Leave Applications by Forensic Patients and Residents

The functions of the Forensic Leave Panel under the CMIA will be moved to the Mental Health Tribunal in the MHWA. These functions are three groups of applications: limited on ground and off-ground leave, reviews of decisions with respect to special leave, and transfers of forensic mental health patients from one designated mental health service to another. Common purposes of leave granted include leave to attend medical or therapeutic appointments; undertake activities of daily living; build or maintain relationships with family and friends in the community; or attend educational, vocational, volunteering, or employment activities.

In considering applications by forensic patients and residents made in accordance with the CMIA, the Mental Health Tribunal is not required to have regard to the mental health and wellbeing principles provided in MHWA.

Freedom of movement

Freedom of movement is not engaged. The Bill streamlines the hearing of applications through the Mental Health Tribunal, and application processes are aimed at reintegration of forensic patients and residents into the community safely and appropriately. The Bill itself does not create limitations on movement but aims to improve the process by which forensic patients and residents’ applications for more movement can be considered in a timely manner. Nothing in the Bill makes it more difficult than the current legislation to apply for or be granted leave.

Humane treatment when deprived of liberty

By the Bill, the Mental Health Tribunal is not required to have regard to the mental health and wellbeing principles in the MHWA during leave applications by forensic patients and residents made under the CMIA. These principles were previously not applicable to forensic patients or residents’ leave applications and continue to not apply. No right is being taken away. However, the consideration of mental health and wellbeing principles that is required for non-forensic patients under the MHWA is not required for forensic patients or residents in leave applications.

The function of hearing reviews of a decision to transfer a forensic patient to another designated mental health service (under section 574) originates under the MHWA and not under the CMIA. Therefore, the Mental Health Tribunal will continue to be required to consider the mental health and wellbeing principles when hearing reviews under this section.

Further, people who are forensic residents under the CMIA are not subject to provisions in the MHWA. Forensic residents have been found not guilty or unfit to stand trial due to their intellectual disability, not mental illness. In this way the forensic division is distinct from the general and special division of the Mental Health Tribunal as it is required to have special expertise in the field of forensic disability and is not limited to considerations of mental illness.

The forensic division’s functions under the CMIA relate to the granting of leave for individuals subject to custodial supervision orders made by a relevant court under the CMIA. This requires a distinct set of considerations for decisionmakers to address any risk that a patient’s or resident’s leave poses to themselves or the community. To consider the mental health and wellbeing principles would introduce a new decision-making framework which may impact on the outcomes of leave applications from outside of the CMIA. Forensic patients will continue to be provided with a Statement of Rights in Part 2.2, including processes that apply. The application process for leave requires the decisionmaker to consider whether the leave would help the forensic patient or resident’s rehabilitation without seriously endangering their safety or the safety of another person.

Under the Charter, the Mental Health Tribunal is still required to treat forensic patients and residents with humanity and with respect for the inherent dignity of the human person. Although the mental health and wellbeing principles are not required to be applied, the Tribunal can still apply them if relevant. In these ways, forensic patients and residents are still procedurally protected against denials of leave that would be inhumane in the context of their supervision order under the CMIA.

Although this right is engaged, the overlapping statutory requirements protect the inherent dignity of forensic patients and forensic residents in leave applications that will now come before the Mental Health Tribunal.

Recognition and equality before the law

By the same token, the exclusion of the mental health and wellbeing principles from consideration in applications for leave by forensic patients and residents treats them unequally compared to applications by other patients before the Mental Health Tribunal heard in the general and special division. This is a limitation on the right to equality.

The limitation on the equal treatment of forensic patients and residents compared to non-forensic patients is justified because, by the fact of being on a custodial supervision order under the CMIA, the forensic patient or resident poses a risk to themselves or to others. The existing decision-making framework is adapted and appropriate to the consideration of leave applications by the forensic division of the Mental Health Tribunal for orders made under the CMIA. These orders are legally different to orders made under the MHWA.

The making of a supervision order already requires a judicial officer to determine that there is “no practical alternative in the circumstances”. The other statutory protections, described above, ensure the limitation is only to the extent reasonably necessary. Given the purposes of the CMIA, the least restrictive means available to not disrupt the protective legislative framework of custodial supervision orders is to legislate that the mental health and wellbeing principles are not required to be considered.

Right to privacy

Several sections in the Bill balance forensic patients and residents’ right to privacy against the purpose of improving care, mitigating risk of serious harm, and preserving the privacy and confidentiality of other persons or services.

Section 355 of the MHWA requires secrecy over the information relating to a person that could identify that person is extended to forensic patients and residents, with specific exemptions. Breach of this section is an offence, showing the balance between disclosure, sharing, and use of information by authorised professionals for authorised purposes, and the protection of privacy in all other cases.

This is consistent with documents referred to during hearings which may be exempt from disclosure to the applicant for leave in very limited situations of risk of serious harm or disclosure of sensitive or confidential information. The Bill limits the right of access to documents by the applicant only where serious harm might arise to that person or to another person, or where another person’s right to privacy or confidentiality is “unreasonably” breached. The limitation of the right of a person to have information relating to their leave application is reasonably justifiable by the need to protect that person, or another person, against risk of serious harm or against an unreasonable breach of another person’s right to privacy.

Furthermore, hearings in the forensic decision are closed to the public unless it is in the best interests of the forensic patient or resident, or in the public interest, for the hearing to be open to the public. Again, the section protects the privacy of the forensic patient or resident with only two exceptions, consistently with the existing protections in the CMIA.

The obligations of secrecy in the CMIA relating to applications for leave and transfer continue.

Overall, limitations on the right to privacy arising from the absorption of the former Forensic Leave Panel’s functions in determining leave applications into the functions of the Mental Health Tribunal are justified by the need to address the risk of serious harm to a person, or the risk of breach of another person’s privacy or confidentiality.

Freedom of expression

Finally, the Freedom of Information Act 1982 (FOIA) is amended to ensure that FOI Act documents from the Mental Health Tribunal if used in quasi-judicial proceedings in the forensic division are not subject to the FOI Act.

Freedom of expression includes the freedom to seek, receive, and impart information and ideas of all kinds, including the right of the public to access information under freedom of information regimes. Section 15 also provides that lawful restrictions may be reasonably necessary to respect personal rights and reputations, or for the protection of national security, public order, public health or public morality.

The Forensic Leave Panel is not currently subject to FOI requests. As the functions of the Forensic Leave Panel move to the Mental Health Tribunal these functions would be subject to the FOIA. To maintain equivalent protections, the Bill proposes amending the FOIA so that requests under the FOIA cannot be made regarding documents related to the quasi-judicial functions of the forensic division, held by the Mental Health Tribunal. Administrative documents relating to the operation of the forensic division of the Tribunal are not exempt from the FOIA. There is no substantive change in rights for FOI applicants.

Although the right to freedom of expression may be limited by exempting documents related to quasi-judicial functions of the new forensic division from FOI, s 15 permits lawful restrictions as reasonably necessary to respect the personal rights and reputations of leave applicants. These applicants are part of a population who are frequently stigmatised, and the public attention can be severely detrimental to their recovery and attempts to reintegrate into the community. The purpose of granting leave is to encourage that reintegration. The limitation on the freedom of expression of FOI applicants is justifiably limited by the need to protect leave applicants from public scrutiny that is detrimental to their recovery and reintegration and, by extension, to the community.

Electronic Health Information System

The MHWA has an electronic health information system (EHIS) that will continue to enable access, sharing, receipt, and use, of health information for specific legislated purposes. These purposes are: providing mental health and wellbeing services, including integrated care, to the person to whom that information relates; or to permit relevant people to provide authorised services and functions.

The Bill continues to permit disclosure of health information without the consent of a person in the circumstances specified in s 730(2). Those circumstances are broadly that disclosure is permitted where it is: permitted by other law or regulations; for the purposes of exercise of legal functions or delivery of health services; in general terms for family and carers; or for legal proceedings.

For the above, there is no substantive change in rights.

The Bill permits all entities that can collect and use information under the current s 728(2) of the MHWA to also be able to input information into the EHIS, to enable timely updates. The current situation is that only employees or people engaged by a mental health and wellbeing service provider or a prescribed emergency service provider may enter a person’s health information into an EHIS.

The Bill broadens the types of entities and people able to collect, access and use information on the EHIS. It permits the prescription of future classes of persons to enter, collect, and use information on the EHIS.

It permits the sharing of information between the EHIS with the EPHISS established under Part 6C of the Health Services Act 1988. Both data storage systems were established for the purpose of providing up to date, consolidated patient records and integrated care for people who are receiving or have received mental health and wellbeing services. Generally, information on EHIS will be shared with EPHISS where a person is receiving a health service but reference is required to their mental health record for integrated care. Also generally, information on EPHISS will be shared with EHIS where the person will be receiving mental health and wellbeing services, but the service provider will require access to their health records to provide integrated care. In both directions, the aim of the sharing is for the beneficial purpose of improving quality of care by providing clinicians with better access to persons’ medical records held across multiple services to improve patient safety and quality of care.

Shared information will only be accessible where it is used for the purpose of providing integrated care to a person receiving mental health and wellbeing services or health services (as the case may be).

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is 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.

The amendments in the Bill allow interference with the privacy of persons to whom the MHWA applies. The information is information held by mental health and wellbeing services on people who have accessed mental health care services. Compulsorily transferring this information into the EPHISS without consent or an option to opt-out will engage the right in section 13(a) of the Charter.

I consider the right will be limited. However, the limitation on the right to privacy is justified and proportionate, because the purpose is for more complete and more coherent healthcare provision to people who are generally more vulnerable to complex and chronic health issues. The Bill fits into an existing legislative framework that circumscribes the uses of the information and makes breaches punishable.

The EPHISS is already heavily legislated and regulated. Those amendments were already the subject of Charter considerations. Access, disclosure, and use is only permitted for legislated purposes and by authorised persons, under pain of financial penalties. Access to shared health information is only justified at the point a person receives treatment from a mental health and wellbeing provider or participating health service, and the purposes for collection, disclosure, sharing, and use of the information is to improve medical treatment for the person. Interferences with individuals’ privacy that may occur as a result of information in the EHIS being shared with the EPHISS will only be permitted for the purpose of providing healthcare and integrated care, bounded by the statutory purposes listed in Division 3, Part 6C of the Health Services Act 1988.

The Bill does not require the collection of new information. It facilitates the transfer of information held in a smaller local system to a central platform that other healthcare providers can use, recognising that mental health patients can have a range of comorbidities that are not just mental health issues. Access to the system is limited to people who need the information to provide that care. Those people already had a legitimate reason to seek the information from the EHIS or from the health service itself. The EPHISS, the central platform, reduces the bureaucracy and delay of accessing this information.

The same reasoning applies to the regulation to permit the prescription of future classes of persons to enter, collect, and use information on the EHIS. The right to privacy is engaged because more people can access, disclose, and use that information, but people can only use it through the processes and for the purposes set out in the MHWA and the Health Records Act 1999. The right to privacy is limited, but only for permitted uses and by authorised people.

Otherwise, there is no substantive change to the right to privacy through this Bill. Greater health information upload powers do not substantively change that right. The health information would have been uploaded to the EHIS in any case, and everyone who would need the information because of the Bill could already access the information by directly contacting a service provider. The Bill only removes a layer of bureaucracy.

The Mental Health and Wellbeing Commission’s power to disclose information

The MHWA already permits information to be disclosed by the Mental Health and Wellbeing Commissioner if the disclosure is necessary to avoid a serious risk to life, health, safety, or welfare. The Bill permits that disclosure to be made by employees or persons engaged by the Mental Health and Wellbeing Commission, not only the Commissioner.

Right to privacy

The right to privacy is engaged because more people can access, disclose, and use information, including about people, but the Commission’s employees or agents can only disclose that information through the processes and for the purposes set out in the MHWA and the Health Records Act 1999.

The Bill permits the Mental Health and Wellbeing Commissioner’s employees and agents to disclose information if necessary to avoid a serious risk to life, health, safety, or welfare. If information to be shared by an employee or agent is about a person known to the Mental Health and Wellbeing Commission, this power would limit that person’s right to privacy. However, this is balanced by the greater importance of protecting life, health, safety or welfare.

Minor Other Amendments

The Bill permits restrictions on the right to communicate, and applications for further treatment orders, to be reviewed by any authorised psychiatrist, not only the psychiatrist who made the original decision. These amendments protect the rights of MHWA patients by increasing the number of psychiatrists who can make decisions about whether to continue limiting their rights to freedom of expression and freedom of movement. Other psychiatrists are already permitted to access the patient’s information for the purposes of providing services, so there is no change in substantive rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The Bill clarifies that a patient’s nominated support person expresses the views of the patient in the support person’s advocacy, not that the views of the support person should be sought, reflecting the right of the patient to free expression of their views through their advocate.

The Hon. Mary-Anne Thomas

Leader of the House

Second reading

Danny PEARSON (Essendon – Minister for Economic Growth and Jobs, Minister for Finance) (11:07): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Introduction

The Mental Health and Wellbeing Act 2022 delivered on a key recommendation of the Royal Commission into Victoria’s Mental Health System. As envisaged by the Royal Commission, the Act:

• promotes good mental health and wellbeing;

• resets the legislative foundation underpinning the mental health and wellbeing system; and

• supports the delivery of services that are responsive to the needs and preferences of Victorians.

The 2022 Act encompasses the broader community sector and wellbeing services to enable a connected and coordinated system where people do not fall through the cracks.

Importantly, the 2022 Act places people at the heart of the system, by putting the views, preferences and values of people living will mental ill-health, including their families, carers and supporters, at the forefront of service design and delivery.

I would like to take this opportunity to acknowledge and thank those who have contributed to the successful implementation of the 2022 Act.

Thank you to our sector partners, including those that developed education and training resources, led engagement activities and worked closely with my department to monitor implementation of the 2022 Act.

I would also like to acknowledge our mental health workforce. The workforce are the backbone of our mental health and wellbeing system, supporting Victorians in their hardest moments. I thank you for continuing to provide Victorians with world-leading mental health and wellbeing services during a time of significant reform and change.

To those with lived and living experience of mental ill health and your family, carers, supporters and kin, thank you for continuing to work in partnership with us to improve mental health and wellbeing outcomes for all Victorians.

By working together, we will continue to build a mental health system where every person feels safe, seen and supported.

As envisioned when the Act was passed in 2022, the Act necessarily requires updating and amendment as the service system evolves following the Act’s passage.

The Bill before the House includes amendments to the Act and the Health Services Act 1988 to enable information sharing reforms set out in recommendation 62 of the Royal Commission.

The Bill also establishes a more streamlined approach to legislative safeguards and processes by transferring the functions of the Forensic Leave Panel to a new Forensic Division of the Mental Health Tribunal.

The Bill includes minor amendments to the Freedom of Information Act 1982 to exempt documents related to the quasi-judicial function of the new Forensic Division of the Mental Health Tribunal, replicating an existing exemption applying to the Forensic Leave Panel.

The Bill also includes amendments to address some minor and technical matters in the Act, to ensure it operates as intended.

Transfer of functions from Forensic Leave Panel to the Mental Health Tribunal

The Forensic Leave Panel is established under the Crimes Mental Impairment (Unfitness to be tried) Act 1997 (the CMIA) and determines when forensic patients or forensic residents can access on-ground and limited off-ground leave.

Under this Bill, the Forensic Leave Panel will cease to operate and its role and functions will be transferred to a new Forensic Division of the Mental Health Tribunal.

The Mental Health Tribunal is well placed to take over the functions of the Forensic Leave Panel.

There is overlap in membership and expertise between the Forensic Leave Panel and the Mental Health Tribunal, including psychiatrist and psychologist members with relevant forensic expertise and community members.

From an administrative perspective, the Mental Health Tribunal has well established procedures for scheduling and conducting hearings, issuing determinations and statements of reasons, and has existing relationship with forensic patients at a designated mental service where it already conducts hearings.

I wish to extend my sincere thanks to the members of the Forensic Leave Panel, and express my appreciation to the President of the Panel, Justice Rita Incerti.

Their work upholds the rights and recovery of individuals, safeguards the community, and strengthens the integrity of our justice and our forensic mental health system. We are grateful for the contribution that present and past members of the Panel have made.

Information sharing and electronic health information systems

The Royal Commission recommended the Victorian Government develop, fund and implement modern IT infrastructure for the mental health and wellbeing system, including a new statewide electronic mental health and wellbeing record, a data review, an information exchange, a consumer portal, and a data repository.

The existing mental health IT system, known as the Client Management System / Operational Data Store, or CMI/ODS, is a 30-year-old legacy system with growing structural limitations unable to meet the needs of a reformed and expanded mental health system.

The government committed $64.7 million to support the delivery of this recommendation as part of 2022/23 State Budget and work is now well underway to establish a new, fit for purpose IT system, the Electronic Health Information System, or EHIS.

Once fully realised, the modern, interoperable IT architecture envisaged by the Royal Commission will benefit care teams working across public health services and community based mental health services, such as Mental Health and Wellbeing Locals and Prevention and Recovery Care centres.

It will mean that the right information will be available to the right care provider at the right time, so transfers of care are safer and better coordinated.

Recording information once, in an electronic format, at the point of care, removes our reliance on paper, cuts double entry, and gives staff more time with patients.

For consumers, it will help end the exhausting cycle of repeating medical histories, especially traumatic experiences, because key information follows them where they receive care. It will also empower consumers with access to their information and tools to actively manage their care, to promote and enable shared decision-making.

System wide, it will strengthen performance monitoring and lifts our capability for quality and safety oversight.

With strong privacy, security and governance at its core, this modern architecture will support us to deliver safer, more responsive mental health and integrated care for every Victorian.

Replacing a statewide clinical system is a significant and complex project and will continue in stages until mid-2028. This begins with the reforms enabled by the amendments in this Bill for the new Electronic Health Information System and new Mental Health and Wellbeing Record.

The information collected from the system will support the future establishment of other components of recommendation 62, being the comprehensive data repository and associated clinical registries, as well as a new user-friendly consumer portal that allows consumers to view and share their own information.

The amendments will also allow for secure and protected information exchange between this new system, the Electronic Health Information System, and the Electronic Patient Health Information Sharing System, known as CareSync Exchange, for the purposes of providing integrated care.

Established under the Health Services Act, CareSync Exchange is currently being rolled out across the health sector.

There are a range of legislative and operational safeguards in place to ensure that people’s information is safe and secure.

Making sure health information is protected, safe and secure is a priority.

Patient information will be stored in and shared across mental health services in accordance with Victoria’s privacy legislation.

The Department of Health will implement strict controls on who can access the systems, for example, through the use of security identity credentials and access management protocols, to make sure that information is protected, safe and secure.

The Department of Health must also ensure that the platforms for sharing remain safe and comply with the Victorian Protective Data Security Standards, which is overseen by the Office of the Information Commissioner. There are penalties for data and privacy breaches for unauthorised access to people’s medical records.

Minor and technical amendments

The Forensic Leave Panel is currently exempt from the FOI Act in full.

The Bill amends the Freedom of Information Act 1982 (FOI Act) to exempt documentation related to the quasi-judicial functions of the new Forensic Division of the Mental Health Tribunal from Freedom of Information applications.

This amendment replicates the existing exemption applying to the Forensic Leave Panel, ensuring the continued protection of sensitive information related to Forensic Leave matters.

The Bill also clarifies the Health Secretary’s ability to disclose information held on the Electronic Health Information System to the Coroner, related to an investigation or proceeding under the Coroner’s Act.

The Coroner’s Court plays a critical role in reviewing incidents and making recommendations to improve the mental health and wellbeing system.

I look forward to continuing to work constructively with stakeholders and all members of this Parliament to continue the evolvement of the statutory framework that not only delivers the Royal Commission’s vision but enables the best possible mental health and wellbeing outcomes for all Victorians.

I commend this Bill to the House.

Michael O’BRIEN (Malvern) (11:07): 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 25 September.