The Law Handbook 2024

822 Section 8: Disability, mental illness and the law consideration’ will be different to circumstances where there is more time for a decision or where the impact of a decisionmay be particularly significant. It does not mean that individual decisions must always be informed by legal advice, or that a sophisticated formula or process must be followed. Consideration of the mental health and wellbeing principles must be more than a token, tick box, or formality. Proper consideration will usually require a team approach. It will be supported by resources including fact sheets, care planning processes, lived experience resources and engagement, and by ongoing communication and collaboration across various disciplines with the person receiving care and their families, carers and supporters. To demonstrate proper consideration, mental health and wellbeing services should point to activities and information gained across a range of points along the continuum of care. Appropriate supports Appropriate supports (pt 2.1 MHWA) are defined as measures that can be reasonably provided to assist a person to make decisions, understand information and their rights, and communicate their views, preferences, questions or decisions. Reasonable steps must be taken to work out what supports might be needed and these steps must be recorded in the patient file: • use a preferred language (involving interpreters when required); • communicate in an appropriate physical or sensory environment. For example, ensure that there are no loud or distracting sounds when sharing important information; • make sure communication is accessible and inclusive – be clear and easy to understand and communicate. Check in with consumers, carers and families to ensure understanding; • allow and enable the person’s familymember, carer, supporter or advocate to be present (including by the use of technology if not in person); • tailor communication to the person’s needs and provide information in multiple modalities, including digital options – this could include their literacy level, developmental needs, cultural needs and whether or not they have recently experienced stressful or traumatic events; • provide space for communication with family members, carers, supporters or advocates. Statement of rights • A statement of rights (pt 2.2 MHWA) must be given to a person at key points during a person’s compulsory mental health assessment and treatment. • There is an obligation on the mental health and wellbeing service professional providing the statement to take all reasonable steps to ensure it is understood. • As well as this, a person must be given an oral explanation of their rights in a way they can easily understand. Non-legal mental health advocates • The MHWA establishes an opt-out approach for people who are receiving compulsory treatment to access non-legal mental health advocacy support. • Non-legal mental health advocates (pt 2.3 MHWA) assist people receiving mental health and wellbeing services to understand information about mental health assessment, treatment, care and recovery, to participate in decision-making, and to express their views and exercise their rights. • Non-legal mental health advocacy services are provided by Victoria Legal Aid through the Independent Mental Health Advocacy Program (IMHA) • A non-legal mental health advocate can represent a consumer’s views to mental health and wellbeing service staff and provide non-legal assistance to the consumer. • Advocates help consumers to: – understand information regarding their assessment, treatment and care; – participate in the making of decisions about assessment, treatment and care; – express their decisions, views and preferences; – understand and exercise their rights, such as making an advance statement of preferences, appointing a nominated support person, seeking a second psychiatric opinion, seeking legal advice, making a complaint to the Mental Health and Wellbeing Commission.