Mental illness

The Victorian Mental Health and Wellbeing Commission (MHWC) was established on 1 September 2023 in Part 9.1, Division 1 of the MHWA. It replaces the Mental Health Complaints Commission under the previous Mental Health Act 2014. The MHWC is an independent statutory authority, established in response to recommendation 44 of the Royal Commission into Victoria’s Mental Health System. The MHWA is charged with the responsibility of monitoring and publicly reporting on the performance, quality and safety of the mental health and wellbeing system, and elevating the leadership of people with lived experience. For the MHWC’s contact details, see ‘Contacts’ at the end of this chapter. What does the MHWC do? The MHWC’s functions (s 415) are expansive. It is required to:

• “promote the improvement, awareness and understanding of mental health and wellbeing across government, business and the wider community;
• elevate lived experience leadership, and support effective participation of people with lived experience in decision-making processes;
• design and deliver initiatives that create awareness of people with lived experience and their unique experiences, including to promote the role of families, carers and supporters of persons living with mental illness or psychological distress;
• lead and support initiatives to prevent and address stigma related to mental illness;
• monitor and report on the performance, quality and safety of the mental health and wellbeing system;
• report on the use of restrictive interventions in mental health and wellbeing services;
• monitor and report on progress to improve the mental health and wellbeing of the Victorian community, the progress of implementation of the recommendations made by the Royal Commission into Victoria’s mental health system and other matters relating to its functions;
• receive complaints by consumers and carers on their experience in accessing mental health and wellbeing services and endeavour to resolve complaints in a timely manner;
• promote effective complaint handling by mental health and wellbeing service providers;
• make recommendations to the Premier, Minister and heads of public service bodies;
• promote and support compliance with the Act and report significant breaches of the Act to the Health Secretary.” See www.mhwc.vic.gov.au/about-mental-health-and- wellbeing-commission.

In addition to making a complaint directly to the relevant mental health and wellbeing service provider or the Health Complaints Commissioner, a person can make a complaint about a publicly-funded mental health and wellbeing service provider to the MHWC. Complaints about the private mental health and wellbeing system in Victoria can be raised with the Health Complaints Commissioner. A complaint about an individual doctor or psychiatrist can also be made to the Australian Health Practitioners Regulation Agency (see ‘Contacts’ at the end of this chapter). Who can make a complaint to the MHWC? A complaint may be made by a consumer.

‘Consumer’ is defined in section 3 of the MHWA. A consumer is a person:

• who has received or is receiving mental health services by a mental health and wellbeing service provider; or
• who was assessed by an authorised psychiatrist and was not provided with treatment; or
• who sought or is seeking mental health services that were or are not provided. Carers, families and supporters can also raise complaints about their own experiences or on behalf of a consumer. The MHWC can also bring own motion inquiries (s 505).

  The complaints process

  A complaint may be made orally or in writing. Where a person does so orally, the MHWC must take reasonable steps to assist the person to confirm their complaint in writing (s 435(2)). A complaint must be made within 12 months of when the incident or matter which is the subject of the complaint took place (s 434). However, the MHWC has discretion to accept a complaint after that time period if they are satisfied that the circumstances of the complaint so require (s 434). The MHWC has discretion to refer a complaint, without the consumer’s consent, to another body if it is satisfied that the complaint raises issues that require another body to investigate and it is in the public interest to make such a referral (s 448). It is an offence to threaten, intimidate or try to persuade a person to withdraw or not make a complaint, or to subject them to any detriment because of a complaint or intended complaint (ss 513-514). It is also an offence to make a false statement (s 515).

  How does the MHWC resolve complaints?

  Once a complaint is accepted, the MHWC can use a range of methods to try to resolve the complaint, including:
• formal and informal dispute resolution;
• conciliation;
• serving compliance notices to mental health and wellbeing service providers (in certain circumstances); and
• conducting an investigation. If the matter is referred to conciliation, the consumer is entitled to have legal representation and another support person attend the conciliation conference. If conciliation fails to resolve the complaint, the conciliator may recommend the MHWC investigate. It is an offence to fail to comply with a compliance notice, and there are significant penalties attached. Note there is no right to appeal the matter to VCAT, for example, or to take the matter further through this process.