Mental Health and Wellbeing Act 2022 – Families, carers and supporters

The Act recognises and includes specific provisions to support the important role played by families, carers and supporters of people receiving mental health and wellbeing services.

Mental Health and Wellbeing Principles

The Mental Health and Wellbeing Principles of the Act include two key principles that recognise the important role of families, carers and supporters:

• Family and carer principle — Families, carers and supporters (including children) of a person receiving mental health and wellbeing services are to be supported in their role in decisions about the person’s assessment, treatment and recovery.
• Lived experience principle — The lived experience of a person with mental illness or psychological distress and their families, carers and supporters is to be recognised and valued as experience that makes them valuable leaders and active partners in the mental health and wellbeing service system.

Mental health and wellbeing service providers are required to make all reasonable efforts to comply with the mental health and wellbeing principles and to give proper consideration to those principles when making a decision under the Act.

Consultation and notification of carers, parents and guardians

The Act identifies circumstances in which carers; parents of people under the age of 16 years and guardians must be consulted and notified.

Consideration of the views of carers

Under the Act, a carer means a person, including a person under the age of 18 years, who provides care to another person with whom he or she is in a care relationship, but does not include a parent if the person to whom the care is provided is under 16 years of age.

The Act requires a carer to be consulted in a range of circumstances if decisions being made will affect the carer and the care relationship.

A person is in a care relationship if they provide or receive care because one of the people in the relationship has a disability, is older, has a mental illness or an ongoing medical condition.

A person is not in a care relationship:

• merely because they are the spouse or domestic partner of a person, the parent, child or other relative of a person, or because they live with a person; or
• if they provide the care under a service or employment contract, as part of employment or voluntary work for a community organisation or as part of an education or training requirement.

The Act requires that if the carer and the care relationship will be affected, regard must be had to the extent reasonable in the circumstances to the views of a carer when:

• an authorised psychiatrist makes a treatment decision for a patient, including a decision about medical treatment
• a Temporary Treatment Order is made, varied, revoked or expires
• an authorised psychiatrist applies to the Mental Health Tribunal for the making of a Treatment Order
• the Mental Health Tribunal makes a Treatment Order
• the setting of a Temporary Treatment Order or Treatment Order is determined or varied
• a Court Assessment Order, a Temporary Treatment Order or a Treatment Order is varied to allow assessment or treatment of a patient by another designated mental health service
• the Mental Health Tribunal conducts a hearing to determine an application to review an order variation
• the Mental Health Tribunal conducts a hearing to determine the setting of a Treatment Order after a community treatment order is varied to an inpatient treatment order, or conducts a hearing following application for revocation of a Temporary Treatment Order or Treatment Order
• a psychiatrist gives a second psychiatric opinion
• the Chief Psychiatrist reviews a patient’s treatment following an application for review after a second psychiatric opinion report is made
• an authorised psychiatrist makes an application to the Mental Health Tribunal to perform a course of electroconvulsive treatment on an adult patient or young patient
• an authorised psychiatrist determines whether a security or forensic patient will be taken to another designated mental health service
• an authorised psychiatrist grants, varies or revokes a patient a leave of absence
• the Justice Secretary grants, varies or revokes monitored leave for a security patient
• an application is made to the Mental Health Tribunal to transfer a compulsory patient to an interstate mental health facility.

Consideration of the views of parents and guardians

The Act defines a parent, in relation to a person under the age of 18 years, to include:

• a person who has custody or daily care and control of the person;
• a person who has all of the duties, powers, responsibilities and authority (whether conferred by a court or otherwise) which by law parents have in relation to their children; or
• any other person who has the legal right to make decisions about medical treatment of the person.

The Act requires that a parent of a person under 16 years of age must be consulted as the same key points as set out above for carers.

The Secretary to the Department of Families, Fairness and Housing must also be consulted at these same key points if the Secretary has parental responsibility for the young person involved under a relevant child protection order.

The same consultation requirements apply to a guardian if the person has one appointed. A guardian is a person appointed in a guardianship order as a guardian in relation to one or more specified personal matters in accordance with the Guardianship and Administration Act 2019.

In most circumstances, the obligation to consult carers, parents and guardians arises only to the extent that is reasonable in the circumstances.

Notification of carers, parents and guardians

The Act also sets out a range of events about which notifications must be made to:

• a carer if the carer and the care relationship will be affected
• a parent if the person is under 16 years of age
• a guardian if the person has one appointed
• the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the young person involved under a relevant child protection order

These events are when:

• an Assessment Order, Court Assessment Order, Temporary Treatment Order or Treatment Order is made, varied, revoked or expires (or an assessment order is extended)
• the Mental Health Tribunal lists a matter for hearing
• a Court Assessment Order is completed
• a patient’s right to communicate is restricted
• restrictive interventions are used on a person
• a second psychiatric opinion report is made (the psychiatrist must ensure reasonable steps are taken to provide a copy of the report)
• an authorised psychiatrist determines that, contrary to a second psychiatric opinion, the criteria apply to a patient or the authorised psychiatrist does not adopt all of the recommendations of a second psychiatric opinion (in which cases written reasons must be provided)
• the Chief Psychiatrist has reviewed a patient’s treatment following an application for review after a second psychiatric opinion report is made (reasonable steps must be taken to provide written notification of the outcome of the review)
• the Mental Health Tribunal grants or refuses to grant an application for the performance of electroconvulsive treatment
• the Mental Health Tribunal grants or refuses to grant an application for the performance of electroconvulsive treatment on a patient
• the Justice Secretary grants, varies or revokes monitored leave for a security patient
• a patient is absent without leave from designated mental health services
• the Chief Psychiatrist makes a written direction to a designated mental health service in respect of the mental health services provided to the person
• a security or forensic patient is received at a designated mental health service or taken to another designated mental health service
• a security patient is discharged as a security patient
• when an interstate transfer order is an interstate transfer if treatment order is made for a patient.

In most circumstances, the obligation to notify arises only to the extent that is reasonable in the circumstances.

Carers, parents and guardians will also be given copies of any Orders made and relevant statements of rights.

Nominated support persons

A nominated support person is someone appointed by a person to support them to express their views and preferences if they become unwell and receive compulsory assessment or treatment.

This may be a person’s family member or carer, but anyone can be a nominated support person.

Where a person nominates someone other than a carer to be their nominated person, a carer must still receive information and have their views considered as described above.

Read more about nominated support persons.

Information disclosure to families, carers and supporters

The Act adopts a consent-driven approach to information sharing. As a general rule, consumer consent is required for the sharing of health and personal information, and consumers are able to withdraw this consent at any time.

The Act includes a positive duty for providers to share some or all of a person's health information to family, a carer or a supporter, with consumer consent, following the consumer's admission or discharge from an inpatient service.

Provisions requiring parents and carers be consulted and notified about key events means that information about a patient’s treatment will necessarily be given to parents or carer so that they can effectively participate in a consultation, or so that they can take action in response to being notified about an event.

Separate to information being disclosed under the consultation and notification provisions, if a patient is unable to consent or refuses to consent to sharing information, carers can be given information if they need the information to provide care to a patient and to prepare for their caring role. A person disclosing information in these circumstances must have regard to the patient’s views and preferences, including any preferences expressed in an advance statement.

This information may be about the treatment and management of mental illness, how to respond to behaviours of concern, and how to access practical assistance. It may also include information to generally assist carers to better support the person with mental illness.

The Act also allows for disclosure of information about a person to parents where the person is under 16 years of age.

Where a family member or friend is not directly responsible for providing care, the Act permits a mental health service provider to disclose a person’s health information in ‘general terms’, for example, advising whether an inpatient is well enough to receive visitors.

For more information about information sharing, see information sharing under the Act.

How are complaints handled?

The Mental Health and Wellbeing Commission receives, manages and resolves complaints about mental health services provided to consumers.

Anyone can make a complaint about mental health and wellbeing services.

Complaints can be made to the Commission in relation to any matter arising from:

• the provision of mental health and wellbeing services by a mental health and wellbeing service provider
• a failure by a mental health and wellbeing service provider to provide services to a consumer
• a failure by a mental health and wellbeing service provider to make all reasonable efforts to comply with the principles of the Act
• the way in which a complaint was handled by a mental health and wellbeing service provider.

Complaints can also be made by a carer, family member or supporter in relation to their experience in that role.

Read more about the Mental Health and Wellbeing Commission.