1st April legislative changes to MHWC jurisdiction

From 1 April, Victorians presenting to emergency departments (EDs) at designated mental health services (DMHS) will have stronger safeguards and human rights protections for potentially harmful experiences – such as restrictive interventions. However, we are concerned that many Victorians will still not have access to the increased protections and safeguards of the new Mental Health and Wellbeing Act 2022 (the Act).

Legislative changes taking effect from 1 April will require the mandatory reporting of all instances of restrictive intervention for mental health presentations at Victoria’s 19 DMHS EDs to the Office of the Chief Psychiatrist (OCP) and bring all mental health matters in DMHS EDs within the scope and oversight of the Mental Health and Wellbeing Commission (MHWC).

While this is a step forward, these strengthened oversight and safeguards will only impact EDs in approximately one in four public health services in Victoria, and nearly 60 services where people presenting with a mental health concern won’t have the protections of the Act.

Prior to 1 April, only a limited number of people had access to safeguards and oversight, and while we welcome this expansion, we encourage the government to consider whether these reforms should go a step further to ensure no one slips through the gaps.

In December 2023 the MHWC raised the need for better collection of data across all emergency departments with the Department of Health in line with a report commissioned by the Department of Health and Human Services in 2019.

While the expansion of oversight to DMHS EDs does partly address the issues raised by the report, better and more comprehensive data collection across all EDs will support the Commission’s ability to properly monitor compliance and improve practices. The MHWC will continue to work with the Department of Health on better oversight and reporting.

Prior to 1 April, only people on a compulsory treatment order at an ED had access to oversight and safeguards from the MHWC. While we welcome the expansion it is still limited to one in four services. This means many instances of restrictive intervention will continue to go unreported and unmonitored.

We are also concerned that the increased oversights and safeguards will not apply to individuals experiencing mental or psychological distress, because a clinician assessed them as presenting for intoxication or substance withdrawal. Sadly, there is a high prevalence of substance use and mental illness co-occurring within an individual.

Data from the Australian Institute of Health and Welfare shows that over the past seven reporting years, Victoria has continually had the highest rate of physical restraint of any state in Australia. While this rate is trending downward, reporting mechanisms for restrictive interventions are limited and can vary from state to state.

Oversight bodies must have access to comprehensive information about all mental health matters in all emergency departments, to ensure we have the best possible understanding of the key issues in these complex environments.

In the most recent reporting year, there were 58,462 mental-health-related presentations to public emergency departments in Victoria, yet only 57 per cent were seen on time according to triage status – which is below the national average.

At a time when the number of suicides per year is at an all-time high in Victoria, and the suicide rate is at a four-year high, every possible step should be taken to provide safe and effective emergency treatment to all Victorians.

The Mental Health and Wellbeing Commission is an independent statutory authority established on 1 September 2023 to monitor and report on system performance, conduct investigations and inquiries on systemic issues, hold the government to account for the implementation of the Royal Commission into Victoria’s Mental Health System and make recommendations to the Minister and Premier.

Quotes attributable to the Mental Health and Wellbeing Commission

“All Victorians should have equal protection of their human rights when attending an emergency department for mental ill-health or psychological distress and we continue to call on the government to look at ways of addressing gaps in oversight and safeguarding.”

“While we support the Victorian Government’s commitment to eliminate the use of restrictive interventions in mental health treatment, looking at ways to gather consistent state-wide data – that paints a full picture – will ensure that the use of these harmful practices can be better understood and addressed.”

“Victoria’s mental health reforms are an exciting, one-in-a-generation opportunity to create a safer mental health and wellbeing system and we look forward to continuing to work with government, the OCP, people with a lived experience, other oversight bodies, peak bodies, advocates, academics and other sector experts to ensure we get the best possible outcomes for all Victorians.”