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Mental health and the law

Disability Online has sought answers to questions about legal issues that may concern a person with a mental health issue—or their family.

I've been diagnosed with a mental illness. Does that mean I can't make decisions for myself?

Mental illness can impact on decision-making. But that doesn't mean everyone diagnosed with a mental health problem is incapable of thinking for themselves! Sometimes, decisions may be made with a clearer, more logical mindset than others, depending on your illness at the time.

Your capacity to make a decision may vary according to:

  • the nature and extent of your impairment at the particular time that a decision is needed
  • the type and complexity of decision that needs to be made.

These factors should always be considered when contemplating any decision.

What happens if the Queensland Civil and Administrative Tribunal has deemed me ‘incapable' and appointed a guardian, but then I get better?

You or your appointed guardian would ask the Queensland Civil and Administrative Tribunal to revoke the order.

 My family says I need help but I don't agree. Can they force it?

The Mental Health Act 2000 (Qld) allows for involuntary assessment of people who may require treatment for a mental illness. If the assessment shows that treatment criteria (as specified under the Act) apply, an involuntary treatment order can be made.

Read fact sheets about involuntary assessments and involuntary treatments.

Read the Mental Health Act 2000 (Qld).

You cannot be forced to have either an assessment or treatment without the required documents or treatment order being in place under the Mental Health Act 2000 (Qld).

Does the Mental Health Act 2000 (Qld) affect everyone with a mental illness?

No. The Mental Health Act 2000 (Qld) only affects a small proportion of people with a mental illness-those who require involuntary assessment and/or treatment.

It has no impact on people who access treatment voluntarily.

The Mental Health Act also provides special processes for people with a mental illness who are charged with a criminal offence.

Read about the mental health act's purpose, principles and definitions.

Under what circumstances am I likely to come in contact with the Mental Health Act?

You may come into contact with the Mental Health Act 2000 (Qld) because:

  •  there are concerns about your mental health and it is determined that there is no less restrictive way to ensure you receive appropriate treatment for your mental illness
  • you have been charged with a criminal offence and there are concerns about your mental state at the time of the offence or fitness for trial.

Read about the Mental Health Act's forensic provisions.

What are my rights as a mental health patient under the Mental Health Act?

As an involuntary patient under the Mental Health Act 2000 (Qld), you can expect:

  • to be treated with dignity and respect at all times
  • to have your religion and cultural background respected and taken into account
  • to be treated in a way that respects your privacy
  • to have personal information dealt with confidentially
  • to receive information in a form and language that you best understand
  • to receive the assistance you require to communicate effectively, including assistance from an interpreter.

 Read the full statement of rights for involuntary patients, also available in languages other than English.

What is the Mental Health Court?

The Mental Health Court is part of the Supreme Court. Judges-aided by 2 psychiatrists-determine the state or mind or fitness for trial of people charged with criminal offences, hear appeals from the Mental Health Review Tribunal and inquire into the lawfulness of patients detained under the Mental Health Act 2000 (Qld).

Find out more about the Mental Health Court on the Queensland Courts website.

What is the Mental Health Review Tribunal?

The Mental Health Review Tribunal is an independent body set up under the Mental Health Act 2000 (Qld) to protect the rights of people receiving involuntary treatment for mental illness. The Mental Health Review Tribunal website explains its role, functions and processes.

Once under the Mental Health Act's authority, I am under it forever?

Your treatment needs will be reviewed regularly by your doctor and the Mental Health Review Tribunal. You will not remain under the Mental Health Act 2000 (Qld) if you no longer meet its criteria for involuntary treatment. The Mental Health Review Tribunal website explains the process.

I need legal advice. Are there services that are familiar with working with people with mental illness?

Mental Health Legal Service provides free confidential legal assistance in relation to mental health law in Queensland.

Queensland Mental Health Law Practice provides free legal advice and assistance to people with mental illness, their families and anyone dealing with an issue relating to mental health law. The practice also helps clients at the Mental Health Tribunal through a free advocacy service.

Homeless Persons Legal Clinic provides free legal advice and assistance to people experiencing homelessness or at risk of homelessness, at a number of emergency accommodation centres and welfare agencies across Brisbane.

Legal Aid Queensland provides legal information, advice and representation to disadvantaged Queenslanders. It has a mental health unit.

Youth Advocacy Centre provides confidential free legal and welfare assistance to young people under 17 who live in and around Brisbane. It may provide limited phone support to young people living outside Brisbane.

The Queensland Law Society can help you find a private solicitor.

How can I make a complaint about what's happening to me?

There are a number of ways to raise concerns and complaints about mental health treatment or care.

  • Start with your treating practitioner. Discuss what concerns you and seek to work it out together.
  • Queensland Health's website explains the public health complaint system, how to take your complaint to the next level and what happens when a complaint is made.
  • Community visitors inquire into issues raised by residents or their representatives and try to resolve concerns at the time of visiting certain facilities.
  • The Director of Mental Health is responsible for ensuring that the Mental Health Act 2000 is properly applied. Contact the Mental Health Act Liaison Officer on 1800 989 451 (toll free) or by email.
  • The Health Quality and Complaints Commission is Queensland's independent health watchdog.

 What is a community visitor?

A community visitor safeguards the interests of adults with impaired capacity or a mental or intellectual impairment living in:

  • authorised mental health facilities with in-patient services
  • supported accommodation hostels (level 3)
  • accommodation where an adult lives and receives services from Department of Communities (Disability and Community Care Services) or Queensland Health.

Community visitors have both inquiry and complaint functions. They look into issues raised by residents or their representatives and try to resolve concerns at the time of their visits. Unresolved matters may be referred to senior management onsite or an external agency for further investigation or resolution.

The community visitors' functions and powers are authorised under the Guardianship and Administration Act 2000 (Qld).

The Department of Justice and Attorney-General website explains how community visitors make unannounced visits and what they'll do while at a facility.

What is an allied person?

Your rights are protected under the Mental Health Act 2000 (Qld) in relation to any assessment, treatment and care you receive. One way this is done is by allowing you to nominate a support person, known as an ‘allied person', to help you have your say. The allied person can help you understand your rights, and speak with your treating team and also the Mental Health Review Tribunal. Read a brochure about who the allied person can be and what the allied person can do (773KB).

I am worried about a family member who refuses to get help for a mental illness. What can I do?

First try encouraging your family member to see a general practitioner (GP).

If that's not possible, contact your nearest Queensland Health mental health service and ask for guidance. They can explain involuntary assessments and involuntary treatments.

Making decisions now for the future

You can pre-empt any future questioning of who needs to make a decision for you if—or when—you can't by making:

  • an enduring power of attorney—appointing someone to make personal and financial decisions on your behalf. Decisions this person makes have the same legal power as if you had made the decisions yourself.
  • an advance health directive—allowing you to specify beliefs that could affect treatment, say what you do—or do not—want and appoint someone to make health decisions for you that are not otherwise covered.
Licence
Creative Commons Attribution 3.0 Australia (CC BY 3.0)
Last updated:
3 May 2013

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