Mental health and your rights

There are laws about:

• when you can be given treatment even if you don’t want it (compulsory treatment) and when you can choose if you want treatment (voluntary treatment)
• the steps that need to be followed for you to be given compulsory assessment or treatment
• your rights if you are receiving compulsory treatment. This includes how you should be supported to exercise your rights. It also includes how you should be supported to make and be involved in decisions about your treatment wherever possible.
• You have rights if you are treated voluntarily. You also have rights if you are on an order for compulsory assessment or treatment. It is important that you understand your rights. You can get support to understand and exercise your rights, including from a lawyer or a non-legal advocate. Find our more about Independent Mental Health Advocacy.

Mental illness

Mental illness is defined under the Mental Health and Wellbeing Act 2022 as a medical condition where a person’s thought, mood, perception or memory is significantly disturbed. Some examples are:

• depression
• schizophrenia
• anxiety disorders.

You are not mentally ill just because you:

• express or don't express your political, religious, philosophical or sexual beliefs, preferences, gender identity or sexual orientation
• are involved in or don't get involved in a particular political or religious activity
• are involved in sexual, immoral or illegal conduct
• have an intellectual disability
• behave in an anti-social way
• have a particular economic or social status
• belong to a particular cultural or racial group
• are or have previously been involved in family conflict
• have previously been treated for mental illness
• use drugs or alcohol (however, if your mind or body is seriously affected by you taking drugs or alcohol this could be taken as a sign that you are mentally ill, whether the effect is permanent or temporary).

Being diagnosed with a mental illness

Only a doctor can decide whether you have a mental illness and only after a proper assessment.

Voluntary or compulsory treatment

You can receive treatment as a voluntary patient or compulsory patient.

As a voluntary patient, you can be admitted to hospital, but you are free to leave whenever you want.

A compulsory patient is a person who has been assessed by a psychiatrist and put on a compulsory treatment order. This means you can receive treatment against your wishes while you are in the community or as an inpatient in hospital.

Read about the rules that must be followed before someone can be placed on a compulsory treatment order.

Rights of people receiving treatment for mental illness

A number of laws protect your rights if you are being treated for mental illness, including rights to privacy, confidentiality and other human rights.

The Mental Health and Wellbeing Act 2022 explains your rights if you are receiving mental health and wellbeing services in Victoria. This includes your right to make and be involved in decisions about your treatment, care and recovery. It also explains how you should be supported to be included in those decisions.

Read about your rights if you are receiving compulsory treatment.

There are also ways that you can have some control over your treatment.

Capacity and informed consent to treatment

The Mental Health and Wellbeing Act assumes that you are capable of making informed decisions about your treatment, unless the treating professionals decide you do not have capacity. This includes people on compulsory orders. Read about the guidelines for determining capacity and informed consent.

Mental Health Tribunal

The Mental Health Tribunal is an independent tribunal that makes decisions about compulsory treatment orders and orders about electroconvulsive treatment (ECT). It also makes other orders under the Mental Health and Wellbeing Act 2022. Read more about going to the Mental Health Tribunal.

When the police get involved

Sometimes police may get involved with a person with mental illness. This can happen if there is a risk of you hurting yourself or someone else. Police can take you into custody urgently and you will have a mental health assessment.

If the police believe there is no immediate risk of harm, but you still need an urgent mental health treatment, they can request an assessment from a mental health service.

Making a complaint

If you are not happy with the services you have received (or not received) from a mental health service provider, you can make a complaint to the Mental Health and Wellbeing Commission.

Other people can make a complaint on your behalf, such as someone you ask to complain for you, or someone who can show that they have a genuine interest in your wellbeing.

Other support

Find out how you can get other support for mental health and disability.

Publications and resources