The Law Handbook 2024

Chapter 8.4: Mental illness 849 • the assessment of a person’s capacity to consent to compulsory mental health treatment; and • the assessment of whether there is a less restrictive treatment option. Justice Bell recognised that people ‘with mental illness are highly vulnerable to interference with the exercise of their human rights, especially their right to self-determination, to be free from non-consensual medical treatment and to personal inviolability’ [281]. He also noted that the Mental Health Act 2014 ‘represents a paradigm shift away from best-interests paternalism to recognition of people having mental illness as equal right-bearers, not dependent welfare cases’ [281]. For discussion of remedies available under the Human Rights Charter, see Chapter 11.1: Discrimination and human rights. International human rights instruments There are international human rights instruments that set out the rights of people with disabilities that are also helpful to determining a human rights- compliant interpretation of MHWA. The most comprehensive is the United Nations Convention on the Rights of Persons with Disabilities (2006) ( UNCRPD ), which was adopted by the United Nations General Assembly in 2006 and signed by Australia in 2007. Australia ratified the UNCRPD on 17 July 2008 and subsequently ratified its Optional Protocol ( OPCRPD ) on 21 August 2009, which enables individuals or groups of individuals to lodge a complaint of violations of the UNCRPD (called a ‘communication’), once all available domestic remedies have been exhausted. The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) deals specifically with the rights of people with psychiatric disability, however some of these principles are now outdated in light of the stronger provisions of the UNCRPD. Although these international human rights instruments are not fully incorporated into Australian domestic law, they, together with comments published by the responsible committees (e.g. the Committee on the Rights of Persons with Disabilities) can provide guidance on the scope of specific human rights as they relate to people with psychiatric disability. Further advice can be obtained from the Human Rights Law Centre (see ‘Contacts’ at the end of this chapter). Where to get assistance Legal and advocacy services Free and confidential legal services are available to people experiencing poor mental health or involuntary treatment. Please contact the Mental Health Legal Centre (details below), the Victorian Aboriginal Legal Service or Victoria Legal Aid to discuss your representation options. The Mental Health Legal Centre also has an Online Help guided pathway for consumers, patients, carers, families and other supporting professionals to find referral supports in Victoria. For detailed information about assistance available from the Office of the Public Advocate, Community Visitors, IMHA, equal opportunity commissions and specialist disability legal services, see Chapter 8.2: Disability: Asserting your rights. Mental Health Tribunal On its website (www.mht.vic.gov.au) , the MHT provides information about its role and functions, how to apply for revocation of an order and the hearing process itself (including practice notices). The Chief Psychiatrist The Chief Psychiatrist is an independent statutory officer with powers and responsibilities to uphold quality and safety in Victoria’s mental health and wellbeing system. See ‘Contacts’ at the end of this chapter. Victorian Mental Health and Wellbeing Commission The Victorian Mental Health and Wellbeing Commission is responsible for resolving complaints about mental health and wellbeing service providers. For the Victorian Mental Health and Wellbeing Commission’s contact details, see below. Victorian Health Complaints Commissioner The Victorian Health Complaints Commissioner can investigate and help resolve complaints about