Changes in mental health law – reduction in role of Nominated Support Person

As a consequence of findings from the Royal Commission into Victoria’s mental health system, Victorian mental health law has been completely overhauled. The 700+ page Mental Health and Wellbeing Act 2022(Vic) was passed in September 2022, and becomes operative on 01 September 2023. This replaces the previous Mental Health Act of 2014.

Under the new legislation a person may continue to appoint a Nominated Support Person to represent their interests and advocate on their behalf for any future time when they might become a “patient” within the definition under the new Act.

The new legislation recognises pre-existing appointments of a Nominated Person made under the 2014 Act, but only to the extent of the role as defined in the new legislation. Persons who have a Mental Health Act Nomination of Person document under the 2014 Act, and those persons appointed under such document, should be aware that the scope of the Nominated Person role has been watered down.

Most critically, under the 2014 appointment a Nominated person was someone that “must be consulted in relation to the person’s treatment”. Under s.61 of the new Act the Nominated Support Person is only empowered to “receive information and be consulted about the patient”, presumably if the treating health professionals consider it appropriate to do so.

A Nominated Support person has no longer any legal basis to insist upon being consulted regarding treatment of the patient.

This is a concerning development for such Nominees who care for persons with mental health issues as the treatment consultation requirement is no longer mandatory upon treating health care professionals or service providers.

The families for any person committed as a patient to a facility for treatment of mental health may find themselves effectively shut out from advocating for the care of their loved one, and not able to find out what is going on behind closed doors.