Towards a new Mental Health and Wellbeing Act – considerations for human rights

The Royal Commission into Victoria’s Mental Health System delivered its final report in February of this year, and it was tabled in Parliament in March. Among the matters the Commission was appointed to consider was the need to address the stigma associated with mental health, and the need to safeguard human rights. The final report recommended that the Victorian Government replace the current Mental Health Act 2014 with a new Mental Health and Wellbeing Act. The Department of Health has commenced engagement on the proposed new law, and the drafting of the new Act should be complete by mid-2022.

There are particular policy issues to be addressed in the proposed new Act that are relevant to human rights, including those of people who use drugs or are understood to be experiencing drug-related conditions, and those in LGBTIQA+ communities. GLaD research team member Dr Sean Mulcahy recently led a submission to the Department on some of these issues.

First, it is important that the new Act contains stipulations in the definition of ‘mental illness’ that preclude sexual preference, gender identity, sexual orientation or sexual promiscuity. This is the case in the current Act, about which the then Minister for Health, David Davis, said:

Transgender and gender-diverse people’s mental health, wellbeing and physical health are markedly worse than those of the general population and other subpopulations under the GLBTI umbrella, such as gay men and lesbians. Importantly… research does not indicate that poorer mental or physical health or higher suicidality is inherent to being transgender or gender diverse. Rather, poorer mental health and wellbeing are caused by stigma, social exclusion, discrimination, bullying, rejection by family and friends and the difficulties experiences in transitioning, if required, in a manner that is both timely and appropriate for the individual.

This was informed by research conducted by the Australian Research Centre in Sex, Health and Society that led to the LGBTI Health and Wellbeing Action Plan for Victoria and is consistent with provisions in the more recent Change or Suppression (Conversion) Practices Prohibition Act 2021. This more recent Act makes it clear that a person’s sexual orientation or gender identity does not constitute an illness. Rather, it is the broader failings of institutions and wider society that may cause or exacerbate mental health issues for LGBTIQA+ people.

The Department also proposes updating the language surrounding the mental health principles regarding individual needs from ‘gender, sexuality’ to ‘gender, gender identity, sexual orientation’. This is a welcome change and reflects the wording in the Equal Opportunity Act 2010. However, this provision should also include ‘sex characteristics’, in order to include people with an intersex variation and ensure their needs are recognised by the Act.

The principle regarding the rights, dignity and autonomy of people living with mental illness should also make explicit reference to the Charter of Human Rights and Responsibilities Act 2006. The Law Institute of Victoria has also recommended that the Charter be amended to prescribe mental health services as public authorities and thus bound by human rights obligations, and to include a right to health, which ‘will place an added onus on government to promote a strong human rights culture within the mental health legal framework.’

Second, the current Act enables sharing of health information with parents if a person is under 16 years of age, without regard to their own preferences. This should either be removed or brought in line with the Gillick decision. In particular, if the child has the capacity to give informed consent, their health information should only be shared with parents if informed consent has been given. This would be consistent with the capacity and informed consent provisions regarding treatment for illness and also consistent with the right to privacy contained in the Charter of Human Rights and Responsibilities Act. As the Law Institute notes in their submission, ‘inpatient mental health consumers may feel threatened or paranoid in instances where family members – who may have been involved in them being hospitalised – receive medical information without consent.’

The Department also proposes enabling information sharing with alcohol and other drug services. This is broadly in line with the principle in the current Act that persons receiving mental health services should have their medical and other health needs, including any related to the use of alcohol or other drugs, recognised and responded to. However, again, consideration needs to be given to consent for sharing this information and therefore ensuring individuals have the right to request that this information not be shared. Such safeguards are particularly important for people who use alcohol and other drugs. This is because, as research undertaken by GLaD team members and colleagues shows, they routinely experience stigma and discrimination, especially in health care settings.

Third, if the physical search provisions in the current Act are maintained, they should enable the individual to nominate the gender of the person who will conduct the search rather than the current requirement that they be of the same sex as the person searched. This will ensure that trans and gender diverse people are treated with dignity and respect.

It is of vital importance that the new Mental Health and Wellbeing Act responds to the needs of LGBTIQA+ Victorians and people who use alcohol and other drugs, and that it protects the human rights of all.