Objects and principles, and administering the Act

Objects and Principles of the Act

The Objects and Principles are critical in setting the framework for the Mental Health Act 2016 and how it is to be implemented in practice.

The first object is to improve and maintain the health and wellbeing of persons who have a mental illness who do not have capacity to consent to be treated. In these circumstances, the Act establishes a legal framework to treat these persons.

In some instances, persons with a mental illness may come into contact with the criminal justice system.  When this occurs, the Act aims to divert persons from the criminal justice system if they were of unsound mind at the time of the offence or are unfit for trial. Under the Act, this may occur through decisions made by magistrates and the Mental Health Court.

Where necessary, the Act also aims to protect the community if a person diverted from the criminal justice system may be at risk of harming others.  These decisions are made by the Mental Health Court.

The Act requires that these objects are to be achieved in a way that:

• safeguards the rights of persons;
• is the 'least restrictive' of the rights and liberties of a person, so they may only be adversely affected to the extent necessary; and
• promotes the recovery of a person.

Staff of authorised mental health services should consider these three protections and ensure they are embedded into everyday practice.

The Act also establishes the principles for the Act.

Understanding these principles is critical to ensuring that the Act is properly administered.

Some examples of the principles include:

• The right of all persons to the same basic human rights must be recognised and taken into account.
• To the greatest extent practicable, a person's views, wishes and preferences are to be taken into account in making a decision about the person.
• A person is presumed to have capacity to make decisions about the person's treatment and care.
• To the greatest extent practicable, family, carers and other support persons are to be involved in decisions about the person's treatment and care, subject to the patient's right to privacy.
• The unique cultural, communication and other needs of Aboriginal and Torres Strait Islander people, and people from culturally and linguistically diverse backgrounds, must be recognised and taken into account; and,
• to the greatest extent practicable, the best interests of minors are to be recognised and promoted.

The Act requires that anyone involved in the administration of the Act must have regard to these principles.  As such, staff of authorised mental health services should consider all of the Principles and ensure they are embedded into everyday practice.

Administering the Act

The Mental Health Act 2016 establishes various positions and bodies to administer the legislation – many of them you will be familiar with from the Mental Health Act 2000.

The position of Chief Psychiatrist replaces the Director of Mental Health under the  Mental Health Act 2000.

The Chief Psychiatrist has overall responsibility for protecting the rights of patients.  In performing this role, the Chief Psychiatrist has responsibility for all involuntary patients and also any other patients being treated within an authorised mental health service.

The Chief Psychiatrist can issue Policies on specific matters under the Act.  This would include matters such as the use of seclusion, treating persons under advance health directives, obtaining second opinions and managing forensic patients in the community.  These Policies are binding on all staff of authorised mental health services.

The Chief Psychiatrist can undertake investigations if any concerns arise within a health service.

The Chief Psychiatrist also declares authorised mental health services – including the high security unit - and appoints administrators for authorised mental health services to oversee each service.

The Chief Psychiatrist must prepare an annual report.

The Act enables administrators to appoint doctors as "authorised doctors" under the Act.  Authorised doctors are given specific roles and responsibilities under the Act, such as making "treatment authorities", which will be explained in further detail in section 2 under 'Examinations and Assessments'. 

Doctors must have the required competencies related to the Act to be appointed and to continue in the role.

The Act also enables administrators to appoint "authorised mental health practitioners".  These practitioners also have specific roles and responsibilities under the Act, such as making recommendations for assessments, which will also be explained in further detail later.

To be appointed as an authorised mental health practitioner, persons must have the required competencies related to the Act.

"Authorised persons" may transport patients and other persons under the Act.

Administrators, ambulance officers, authorised doctors, authorised mental health practitioners and police officers are all authorised persons for the purposes of the Act.

The Act continues the Mental Health Court as the central judicial body in the forensic mental health system.

The Act also continues the Mental Health Review Tribunal, but with some changes to its functions which will be outlined in the 'Examination Authorities' section.