Last updated 10 May 2016     This chapter is currently under review.

People with mental illness have the same legal rights and obligations and are subject to the same laws as the general population.

Sometimes, however, mentally ill people may be affected by specific laws that regulate their treatment, their rights and their obligations.

The Mental Health Act 2000 (Qld) (Mental Health Act) deals with:

  • the involuntary assessment and treatment of mentally ill people if they are incapable of consenting or refuse to consent
  • mentally ill people charged with a criminal offence
  • proceedings in the Mental Health Court
  • proceedings in the Mental Health Review Tribunal
  • protection of patients’ rights.

The criminal law relating to mentally ill people is used to determine questions of criminal responsibility and fitness for trial. Treatment and further assessment may be ordered for people found not to be criminally responsible for an offence or unfit for trial because of mental illness.

Other laws provide for the rights of patients, the capacity of mentally ill people to enter into contracts, make a will, vote in elections or marry, and the responsible management of financial affairs of people who are mentally ill.

Wherever possible, the voluntary treatment of mental illness should be regarded like the treatment of any other illness and should be part of the mainstream health system. The Health Quality and Complaints Commission Act 2006 (Qld) and the Hospital and Health Boards Act 2011 (Qld) protect the rights of patients in the health system generally.

The specific purpose of the Mental Health Act is to provide for the unique features of mental illness that cannot be catered for in other mainstream legislation, such as involuntary treatment. Before there can be involuntary treatment, specific procedures have to be followed for the involuntary assessment, if necessary, of people who are reasonably believed to be mentally ill and in need of assessment. The Mental Health Act also regulates some specific treatments such as electroconvulsive therapy and psychosurgery and prohibits other treatments altogether.

Principles underlying the Mental Health Act

The Mental Health Act sets out some specific principles that apply to people with a mental illness (s 8 Mental Health Act):

  • The same human rights apply to all people:
    • The right of all persons to the same basic human rights must be recognised and taken into account.
    • A person’s right to respect for their human worth and dignity as an individual must be recognised and taken into account.
  • Certain matters have to be considered in making decisions:
    • To the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting their life, especially decisions about treatment.
    • To the greatest extent practicable, in making a decision about a person, the person’s views and the effect on their family or carers are to be taken into account.
    • A person is presumed to have capacity to make decisions about their assessment, treatment and choice of allied person.
  • Support and information have to be provided. To the greatest extent practicable, a person is to be provided with necessary support and information to enable them to exercise rights under the Mental Health Act (e.g. facilitating access to independent help to represent the person’s point of view).
  • Maximum potential and self-reliance have to be achieved. To the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance.
  • A person’s needs have to be acknowledged. A person’s age-related, gender-related, religious, cultural, language and communication needs, and other special needs must be taken into account.
  • Supportive relationships and community participation have to be achieved. The importance of a person’s continued participation in community life and maintaining existing supportive relationships are to be taken into account to the greatest extent practicable (e.g. through treatment in the community where the person lives).
  • A person’s environment and values need to be maintained. To the greatest extent practicable, a person’s cultural and linguistic environment, and set of values (including religious beliefs) must be maintained.
  • Treatment has to be provided. Treatment provided under the Mental Health Act must be administered to a person who has a mental illness only if it is appropriate to promote and maintain the person’s mental health and wellbeing.
  • Confidentiality must be maintained. A person’s right to confidentiality of information about them must be recognised and taken into account.

Interstate mental health laws

The Mental Health Act makes provision for agreements between Queensland and other states for the interstate application of mental health laws.

Provision is made for involuntary patients under detention orders in Queensland to be transferred to interstate mental health services.

Patients absent without leave from interstate mental health services can be apprehended in Queensland.