A model for mental health advance directives in the new Victorian Mental Health and Wellbeing Act

Abstract

Under the Victorian 2014 Mental Health Act (MHA14), Victorians have a right to advance statements. While there have been initiatives to support uptake, under 3% of consumers have done so. In March 2021, the Royal Commission into Victoria’s Mental Health System (the Commission) released its report, including a call to repeal MHA14 and enact a new Act no later than mid-2022. In this paper, we discuss the role of advance planning documentation and instruments used in Australian legislation. Drawing on the Commission’s recommendations, models of advance planning in Australia and the Victorian legislative context, this paper proposes a model of both binding and non-binding advance directives. This model would bring the rights of Victorian consumers into alignment with rights provided under the Medical Treatment, Planning and Decisions Act 2016 (Vic) and assist in bringing the new Act into compatibility with the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Keywords:

• Advance directives
• advance statements
• human rights
• legislation
• mental health

Ethical standards

Declaration of conflicts of interest

Vrinda Edan has declared no conflicts of interest.

Chris Maylea has declared no conflicts of interest.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.

Notes

1 The MTPDA can also be used to appoint at ‘medical treatment decision maker’ (s 29). For simplicity, we have not detailed this role here, but a similar model should be made available in mental health legislation if people using mental health services are to be entitled to equality before the law.