The Law Handbook 2024

Chapter 8.4: Mental illness 823 • Acting on the instructions of a consumer, a non- legal mental health advocate can: – access personal or health information of a consumer; – access a consumer’s advance statement of preferences; – attend meetings with the consumer; – seek information on behalf of a consumer from a mental health and wellbeing service provider; – make contact with a consumer’s nominated support person, family carer or supporter. • If a consumer is a patient and the advocate is unable to obtain instructions, the advocate can attend the relevant designated mental health service to observe and meet the patient and obtain information, including information about the patient’s treatment and welfare to ensure the rights of the patient are upheld. • To support an opt-out approach (where advocates make contact with people who are receiving compulsory treatment), notifications must be made to the non-legal mental health advocacy service when certain events occur, including when a person is made subject to a temporary treatment order ( TTO ) or treatment order ( TO ), when a person’s order is varied or revoked, if restrictive interventions are used or when certain patients are received at or transferred to a designated mental health service. • In most cases this notification will occur automatically when information is entered into the Victorian Client Management Interface/ Operational Data Store (CMI/ODS). Service providers need to ensure that data is entered in a timely way. • Individuals can also contact the service directly to seek advocacy support. • An opt-out register is available for people to register that they do not want to be offered or provided with non-legal mental health advocacy services. • Mental health and wellbeing service providers must give any reasonable assistance to an advocate to undertake their role. • Protocols issued by the Chief Officer set out further details about how the non-legal mental health advocacy service operates and what assistance must be provided. Right to communicate for inpatients People receiving compulsory assessment or treatment in hospital have a right to communicate lawfully with any person, including for the purpose of seeking legal advice or representation or assistance from an advocate (pt 2.4 MHWA). Communication includes making or receiving phone calls, sending or receiving letters; communicating via electronic means; and receiving visitors at reasonable times. Staff of a designated mental health service must ensure reasonable steps are taken to assist an inpatient to communicate. An authorised psychiatrist can make a written direction to restrict a person’s right to communicate if they are satisfied that it is reasonably necessary to protect the health, safety and wellbeing of the inpatient or of another person. Restrictions must be the least restrictive means possible in the circumstances. An authorised psychiatrist cannot restrict an inpatient’s right to communicate with a legal representative, the chief psychiatrist, the MHWC, the Mental Health Tribunal, a Community Visitor, a non-legal mental health advocacy service provider/ advocate or the Secretary of the Department of Families, Fairness and Housing ( DFFH ) if the Secretary has parental responsibility for the person under a child protection order. An authorised psychiatrist who makes a direction to restrict a person’s right to communicate must ensure reasonable steps are taken to inform the inpatient of the restriction and the reason for it. Information must also be provided to their nominated support person, guardian, carer (if the restriction will directly affect the carer and care relationship), parent if the person is under 16 years of age, the Secretary of the DFFH if relevant and the non-legal mental health advocacy service provider. The authorised psychiatrist must regularly review the decision to restrict an inpatient’s right to communicate and must end the restriction immediately if satisfied that it is no longer necessary. Second psychiatric opinion A person subject to a CTO can seek a second psychiatric opinion (pt 2.7 MHWA) to: