The Law Handbook 2024

848 Section 8: Disability, mental illness and the law any security patient who receives treatment from a designated mental health service (s 742). Health information statements The MHWA introduces health information statements (pt 17.2) to support the autonomy and agency of people using mental health and wellbeing services in relation to the information that is held about them. A health information statement is a written comment and/or opinion on information held about the person by a mental health and wellbeing service provider. A person can give a provider a health information statement if they have applied to have information held about them amended or corrected under the Freedom of Information Act 1982 (Cth) (‘ FoI Act (Cth)’ )or HPP 6 and the provider refuses to amend or correct the information. If the provider refuses to amend or correct the information, the provider must advise the person in writing of the reasons for that refusal. The provider must also inform the person in writing that they may within 12 months make a health information statement. A health information statement given by the person to the mental health and wellbeing service provider must be in writing. The provider must accept the health information statement unless it does not relate to the subject of the initial request. The provider must include the health information statement on the persons’ health information record. Mental health and human rights Charter of Human Rights and Responsibilities Act In addition to the human rights principles underpinning the MHWA, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘ Human Rights Charter ’) (s 38) requires public authorities to give proper consideration to and act consistently with human rights. The Human Rights Charter also requires courts and tribunals to interpret and apply legislation in accordance with human rights. The Human Rights Charter rights that are relevant to people receiving psychiatric treatment include: • recognition and equality before the law (s 8); • the right to life (s 9); • the right to protection from cruel, inhuman or degrading treatment or punishment (s 10(b)); • the right not to be subjected to medical or scientific experimentation or treatment without full, free and informed consent (s 10(c)); • freedom of movement (s 12); • the right to privacy and protection of reputation (s 13); • freedom of thought, conscience, religion and belief (s 14); • the right to liberty and security of person (s 21); • the right to humane treatment when deprived of liberty (s 22); and • the right to a fair hearing (s 24). The human rights in the Human Rights Charter are not absolute rights and may be limited in some circumstances including as determined by section 7. All public mental health services, their staff, the MHT (in some circumstances) and arguably also the Victorian Mental Health and Wellbeing Commission are public authorities. Private doctors acting under the MHWA may also be public authorities. The test cases of Kracke v Mental Health Review Board [2009] VCAT 646 (‘ Kracke case ’) and Antunovic v Dawson [2010] VSC 377 (25 August 2010) (‘ Antunovic case ’) discussed important principles about the interpretation and application of the Human Rights Charter to people receiving involuntary/compulsory psychiatric treatment. Although the cases dealt with the provisions under the Mental Health Act 1986 (including in the Kracke case thepowers and functions of the thenMental Health Review Board) the cases may be relevant to the questions of interpretation and the responsibilities of public authorities under the MHWA. Regarding interpretation under section 32 of the Human Rights Charter, however, these decisions – in particular the Kracke case – should be read in light of subsequent decisions including Momcilovic v The Queen [2011] 245 CLR 1 (8 September 2011). In the PBU & NJE case (see ‘Mental health treatment, capacity and consent’, above), Justice Bell provided further commentary on the application of the Human Rights Charter specifically for: