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Mental Health Act 2016: the important changes that will affect Queenslanders

Friday 17 March 2017

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The updated Mental Health Act legislation came into practice on 5 March 2017.

The Mental Health Act 2016 is a new piece of legislation that governs how people with particular mental health conditions are treated in the health system. This Act replaces the Mental Health Act 2000.

Why has it changed?

In 2016, the Act was updated to strengthen patient rights and to better align with good clinical practice. These updates came into practice on 5 March 2017. This means that the laws now help doctors and medical professionals provide the best treatment available for mental health patients in the best way, even more than they did before.

The key objective of the Mental Health Act is to improve and maintain the health and wellbeing of a person who has a mental illness and does not have capacity to consent to be treated.

This means the Act could affect you as a mental health patient or as a member of the general community.

What the changes mean for Queenslanders

The entire Act (PDF 1.92MB) is lengthy, but you can find information separated into usable sections in Mental Health Act 2016. We’ve listed below some of the key changes to the Act which will affect Queenslanders as patients, carers and community members.

Important changes to the Mental Health Act

Defining capacity of consent

In the new Act, a better definition of ‘capacity of consent to be treated’ is now included.

Consent is when you give your permission to receive mental health treatment. Under the definition in the Act, you have capacity to give your consent if you are able to:

  • understand that you are unwell or have symptoms of mental illness
  • understand what your treatment will involve and why
  • understand the benefits of the treatment and the risks, as well as any alternative options
  • understand and the potential consequences if you choose to not receive the treatment
  • and make a decision about the treatment and communicate your decision.

You are able to be supported by another person, like a family member, carer or community member when being given this information and making decisions regarding treatment.

If you are not capable of giving your consent, and there are serious risks to yourself or others, your doctor may make a treatment authority, which allows them to treat you without your consent. You will become an ‘involuntary patient’. The Act is written to define and support the rights of involuntary patients in particular ways.

Understanding oral information

There are now more provisions in the Act to ensure that, if you are an involuntary mental health patient, as many steps as possible are taken to make sure that you understand spoken information you are given by your doctors and treatment teams. These include:

  • having the information explained in a way that is appropriate to your age, culture, mental illness, ability to communicate and any disability
  • having the information explained in the way you are most likely to understand, for example in your own language if that is not English
  • and having the information explained to your nominated support person, or family member or carer if you have not yet nominated a support person.

Seclusion

In some cases, involuntary patients may need to be placed in a seclusion room to protect the patient or others. This is seen as a ‘last resort’ when other options do not work. The Act places a lot more safeguards on the use of seclusion to protect individual rights.

Independent Patient Rights Advisers

All public authorised mental health services have now appointed Independent Patient Rights Advisers (PDF 506kB). As the name suggests, the role of these advisers is to assist patients and support persons to understand their rights under the Act. Advisers can also assist with communication between patients and support person, and the treating team if problems arise.

The statement of rights

The Chief Psychiatrist must prepare a written statement of rights that contains information about:

  • the rights of patients
  • the rights of patients’ nominated support persons, family, carers and other support persons
  • and the rights of patients to make complaints about the treatment and care they receive.

This statement must be made available on request to patients at all authorised mental health services, where signs must be displayed that are easy to see and read stating that the statement of rights is available to patients. An independent patient rights adviser can be on hand to explain these rights.

You can read the statement of rights here (PDF 997kB).

Nominated Support Persons

In case you become an involuntary patient, you can nominate one or two ‘nominated support persons’. These nominated support persons (PDF 499kB) might be members of your family, carers, friends, or other trusted members of your community.

These people can provide assistance and support to you if you become unwell and become an involuntary patient.

Whenever your doctors have to explain or discuss a matter with you, they also have to explain it and discuss it with your support person, too. If you haven’t nominated a person, you’re still covered: according to the Act this discussion must then happen with a family member, carer or other support person.

Your nominated support persons are also able to:

  • receive and discuss confidential details about you with the professionals who are treating you
  • support you or represent you at Mental Health Review Tribunal hearings if necessary
  • and request a psychiatrist report on your behalf if you’re ever charged with a ‘serious offence’.

Advance health directives

An advance health directive (PDF 705kB) is made by a person to provide their consent to treatment and care if, at a future time, they are not able to make decisions for themselves.

The new Act promotes the use of advance health directives and treating persons in a ‘less restrictive way’, which means giving them as much say as possible about their treatment.

Promoting the use of advance health directives, and other alternatives to treatment without consent under the Act, gives individuals greater control over their future healthcare. It also supports patient empowerment and recovery.

The Advance Health Directive for Mental Health - Guide and Form (PDF 2.13MB) which can be downloaded from the Mental Health Act website, has been prepared for persons wishing to make an advanced health directive.

The right to receive visitors, health practitioners and legal advisors

Under the Mental Health Act, if you are an inpatient in hospital being treated for a mental illness you have the right to be visited by family, carers and other support people, including health practitioners and legal advisers.

Unless the team caring for you think that having visitors will be detrimental to your wellbeing, you can receive visitors at any reasonable time. The administrator at the hospital you are at will set visiting times according to how the facility runs and the comfort of you and other patients.

The right to communicate with other persons by phone or electronic device

As a patient at an authorised mental health service, the Act now includes your right to communicate with other people by phone or an electronic device, like a tablet or computer.

The administrator of the facility where you are being treated can decide on a case-by-case basis to restrict your access or not allow you access to these devices, if it is going to be detrimental to your health or other patients.

Last updated: 23 August 2017