The Legislative Context

The Mental Health Act 2013 (Tas) is the dominant Act in Tasmania in relation to mental health and medical treatment for those with a mental illness. Related legislation includes the Guardianship and Administration Act 1995 (Tas); the Sentencing Act 1997 (Tas); and the Criminal Justice (Mental Impairment) Act 1999 (Tas).

The Mental Health Act 2013 deals with the rights of involuntary patients, and the involuntary detention of persons in approved hospitals. It also provides for review of orders causing detention or treatment, whether requested by the patient or by other interested parties.

The Guardianship and Administration Act 1995 applies to the role of guardians of persons, including persons being treated in an approved hospital. The Criminal Justice (Mental Impairment) Act 1999 sets outs the procedures for orders relating to the detention and treatment of persons found not guilty by reason of mental impairment, and the sentencing and order review options for such persons.

The Mental Health Act

Important points to know about the Mental Health Act are that:

  • The Act only deals with involuntary patients who have, or appear ot have, a mental illness;
  • It provides scope to make orders for the assessment, treatment, or detention of patients, when such patients are themselves incapable of giving informed consent to their assessment, treatment, or detention;
  • These orders are made by the Mental Health Tribunal;
  • A patient must meet all criteria before an order can be made;
  • If the patient fails to meet any of the criteria then the order cannot be made; 
  • The Tribunal must make a a mandatory review of every treatment or involuntary inpatient detention order, which is to occur within 30 days of its being made;
  • Any patient can apply for an additional review; and
  • Generally, the patient must be discharged from the order as soon as they no longer meet a criterion, i.e., once they show signs of rehabilitation and recovery

Patient Rights, Care, and Service Delivery Principles

The Mental Health Act provides protection of the rights of persons subject to such orders as it provides. These include assessment orders, treatment orders, and orders for admitting patients into Secure Mental Health Units. All involve restrictions on liberty.  The Mental Health Tribunal reviews the making of all such orders to ensure that they are necessary, and periodically reviews the situation of all patients who are on longer-term orders.

The objects of the Act are described in section 12.  They include ensuring high standards of care for people with mental illnesses, ensuring that patients are provided with appropriate information about their rights, and that patient care and treatment is to be given in the least restrictive setting. Incidental objects of the Act include reducing the adverse effects of mental illness on families, ensuring equitable and comprehensive services to those affected by mental illness, and achieving high standards of care and treatment.

In addition, Schedule 1 of the Act outlines mental health service delivery principles which recognise the tension between the need to restrain a person’s liberty to protect the public, and the need to protect their dignity and autonomy, and self-respect.  

The Chief Civil Psychiatrist, and the Chief Forensic Psychiatrist

A feature of the legislation is the establishment of the offices of Chief Civil Psychiatrist and Chief Forensic Psychiatrist.  Together, with the Mental Health Tribunal, they provide an important review and oversight role in ensuring the assessment, treatment, and care of persons with mental illness occurs according to the Act's provisions.  Their powers and functions include issuing orders and clinical guidelines to medical practitioners concerning the exercise of their clinial and non-clinical duties, and approving the form of rights statements required to be given to patients periodically, during their assessment, treatment, and care.

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