2.1 - Principles Underpinning the Act

Principles Underpinning the Act

An important aspect of the Mental Health Act 2000 (Qld) is the inclusion of certain principles that decision makers must take into account when administering the Act. In reflecting the substance of the UN Principles, Chapter 1 Part 3 asserts that certain principles should apply in the administration of the Act. For example, there should be consideration and respect for human rights, and, to the greatest extent practicable, a person should be encouraged to participate in decision making and receive treatment only where it is appropriate to advance and maintain their mental health and wellbeing.

The Act presumes that a person has the capacity to make decisions about the person's psychiatric assessment, treatment, and their choice of an allied support person. An allied person can assist the person to communicate their views in relation to decisions about the person.  

In addition, the principles intend to ensure that the specific circumstances of the person are taken into account; such as due consideration of a person's unique cultural, religious, and linguistic needs.

A person's right to confidentiality should be maintained in all circumstances except where specific provisions provide for the release of certain information.

The Right to Least Restrictive Treatment

Under section 9, a power or function performed under the Act relating to a person who has a mental illness must be exercised so that:

a) the person's liberty and rights are adversely affected only where there is no less restrictive way to protect the person's health and safety or to protect others; and

b) The adverse effect is the minimum necessary in all circumstances.

It is important to understand that mental health practitioners, such as psychiatrists, doctors and nurses, exercise almost exclusive authority to make decisions regarding the nature and substance of involuntary and forensic patients' treatment. 

The Act asserts that forensic bodies such as the Mental Health Court and the Mental Health Review Tribunal merely possess the jurisdiction to authorise health carers to establish, and then to administer treatment under the Act. Thus, the actual substance of the person's treatment such as decisions to seclude, restrain or administer particular medications and their dosage cannot be determined by those forensic bodies. Such decisions are the responsibility of mental health practitioners appointed by the Director of Mental Health under section 499. However, there are exceptions in relation to the provision of restricted treatments, such as electroconvulsive therapy and psychosurgery, which require the Mental Health Review Tribunal's approval according to Chapter 6 Part VI of the Act.