Mental Health Act 2015
On 1 March 2016, the ACT’s new Mental Health Act 2015 came into effect, giving those in the ACT living with a mental illness, or their carers and family members, greater opportunity to contribute to decisions on their treatment, care and support.
The new Act, which replaces the Mental Health (Care and Treatment) Act 1994, creates a fresh approach to service delivery and brings the ACT’s mental health legislation into line with the United Nations Convention on the Rights of People with a Disability and the ACT Human Rights Act.
The new Act is the result of years of consultation with people with lived experience of mental illness, together with their carers and clinicians, and is about empowering people in our community with mental illnesses and mental disorders to make critical decisions about their treatment, care and support to the best of their ability, and with the involvement of carers, close family and friends. It is also about helping them with self-management and optimising recovery.
The key principles driving the legislation create a legal environment geared toward supporting people in recovery from their illness, and providing the least restrictive care. Some of the main changes, include:
Consideration of a person’s decision making capacity:
- The Person has capacity to make a decision if they can, with assistance:
- Understand when a decision about treatment, care or support needs to be made,
- Understand the facts related to that decision,
- Understand the main choices available in relation to the decision
- Weigh up the consequences of the main choices
- Understand how the consequences of the main choices affect the person
- On the basis of the above elements, make the decision, and
- Communicate the decision they make in whatever way they can.
Supported decision making
Capacity should always be assumed. A person with a mental disorder or mental illness must always be given the opportunity to make or contribute to decisions about their treatment, care or support to the best of their ability with the involvement of carers, close family and friends. This aligns with the fundamental principles of recovery and least restrictive care.
Legal recognition of Advance Consent Directions (ACD) and Advance Agreements (AA)
These documents now have full legal recognition and apply when the person lacks capacity and their decisions are agreed in writing between the person and the treating team.
The Advance Consent Directions contains the main decisions about the person’s treatment and if the team needs to make any changes, an application must be made to the ACT Civil and Administrative Tribunal.
An Advance Agreement contains the person’s decisions regarding ‘everyday’ matters such as who will look after my house/cat.
Ability to appoint a Nominated Person
A person with a mental disorder or mental illness, who has decision-making capacity, may, in writing nominate someone else to be their nominated person.
The nominated person can be contacted by clinicians and others for guidance about that person’s wishes regarding treatment, care or support for a mental disorder or mental illness.
Forensic Mental Health Orders
A new classification of Orders for those people who have had or are currently involved with the correctional system, a Forensic Mental Health Orders (FMHO) would apply.
These orders would only be made where a person meets the criterion of serious endangerment to public safety. Under a FMHO the criterion of decision making capacity is removed.
The concept of the new FMHO will be reviewed after 3 years of operation of the Act to ascertain effectiveness.
The Mental Health Bill 2015, which was passed in the ACT legislative Assembly in September 2015, has been combined with the Mental Health Treatment and Care Amendment Act 2014 to create the new Mental Health Act 2015.
The new Mental Health Act 2015, replaces the Mental Health (Care and Treatment) Act 1994 and is available on the ACT Legislation website www.legislation.act.gov.au
Further information and resources
ACT Health is committed to supporting people living with a mental illness or mental disorder, as well as their close family, friends and carers to understand the new Mental Health Act 2015 and how it relates to them. We are also committed to working with service providers in their provision of high standard, professional treatment and care to people experiencing mental illness or a mental disorder. This includes outlining their specific rights, roles and responsibilities under the new Act.
See below resources that have been developed to highlight new additions or changes from the previous Mental Health (Treatment & Care) Act 1994, and to provide further information around the general principles for the new Act, including the rights of people living with a mental illness or mental disorder regarding their assessment, treatment, care or support:
ACT Mental Health, Justice Health and Alcohol and Drug Services encourage and support consumer and carer participation and feedback, and if you have any further questions on the new Mental Health Act 2015, contact the Consumer Engagement Feedback Team on:
Mail: Consumer Feedback and Engagement Team, GPO Box 825 Canberra ACT 2601
Phone: (02) 6244 2740
Fax: (02) 6244 4619