The Law Handbook 2024

842 Section 8: Disability, mental illness and the law Practitioners Regulation Agency (see ‘Contacts’ at the end of this chapter). Who can make a complaint to the MHWC? A complaint may be made by a consumer. ‘Consumer’ is defined in section 3 of the MHWA. A consumer is a person: • who has received or is receiving mental health services by a mental health and wellbeing service provider; or • who was assessed by an authorised psychiatrist and was not provided with treatment; or • who sought or is seeking mental health services that were or are not provided. Carers, families and supporters can also raise complaints about their own experiences or on behalf of a consumer. The MHWC can also bring own motion inquiries (s 505). The complaints process A complaint may be made orally or in writing. Where a person does so orally, the MHWC must take reasonable steps to assist the person to confirm their complaint in writing (s 435(2)). A complaint must be made within 12 months of when the incident or matter which is the subject of the complaint took place (s 434). However, the MHWC has discretion to accept a complaint after that time period if they are satisfied that the circumstances of the complaint so require (s 434). The MHWC has discretion to refer a complaint, without the consumer’s consent, to another body if it is satisfied that the complaint raises issues that require another body to investigate and it is in the public interest to make such a referral (s 448). It is an offence to threaten, intimidate or try to persuade a person towithdrawor not make a complaint, or to subject them to any detriment because of a complaint or intended complaint (ss 513-514). It is also an offence to make a false statement (s 515). How does the MHWC resolve complaints? Once a complaint is accepted, the MHWC can use a range of methods to try to resolve the complaint, including: • formal and informal dispute resolution; • conciliation; • serving compliance notices to mental health and wellbeing service providers (in certain circumstances); and • conducting an investigation. If the matter is referred to conciliation, the consumer is entitled to have legal representation and another support person attend the conciliation conference. If conciliation fails to resolve the complaint, the conciliator may recommend the MHWC investigate. It is an offence to fail to comply with a compliance notice, and there are significant penalties attached. Note there is no right to appeal the matter to VCAT, for example, or to take the matter further through this process. Other types of patients Voluntary patients Anyone can seek admission to a hospital for psychiatric treatment. A person admitting themselves to hospital will be classified as a voluntary patient. A voluntary patient can only be given treatment if they agree to it. Private hospitals can only treat voluntary patients. Leaving an institution A voluntary patient may leave a hospital at any time or can be discharged by the authorised psychiatrist. However, if staff believe that a voluntary patient who wants to leave meets the criteria for compulsory treatment and detention as an involuntary patient, the patient may be detained under the provisions of involuntary admission. Security patients Who are security patients? Security patients are people who have committed a criminal offence and have been ordered to be detained in a designated mental health service for psychiatric treatment and subject to either a court secure treatment order ( CSTO ) or a secure treatment order (STO) (s 3). A security patient can be: