It seems the R U OK? National Day held on September 10, has been more critical for Australians than any other year with reports of over 3326 calls for help in a single day. Lifeline experienced the busiest period in its 57-year history between March and June with almost 90,000 calls recorded every month. Additionally, mental health services are reporting such sharp increases in symptoms of anxiety and depression that currently over 40 per cent of Australians are seeking help and waiting lists to see a psychologist can be up to three months in some areas.

While the Government has responded by addressing the mental health impacts of the COVID-19 pandemic with more than $500 million additional funding for mental health and suicide prevention, there are still questions that arise like how this impacts the community in a legal sense.

No matter what your living situations are, knowing your legal rights and how mental health issues can affect you and your family is vital in the current climate.

What the law says about mental illness

Mental illness is defined under the Mental Health Act 2014 as a medical condition where a person’s thought, mood, perception or memory is significantly disturbed. Some examples can include depression, schizophrenia and anxiety disorders.

However, legally you are not considered mentally ill if you have symptoms of the following:

  • you express or don’t express your political, religious, philosophical or sexual beliefs, preferences, gender identity or sexual orientation
  • you are involved in or don’t get involved in a particular political or religious activity
  • you are involved in sexual, immoral or illegal conduct
  • you have an intellectual disability
  • you behave in an anti-social way
  • you have a particular economic or social status
  • you belong to a particular cultural or racial group
  • you are or have previously been involved in family conflict
  • you have previously been treated for mental illness
  • you use drugs or alcohol (however, if your mind or body is seriously affected by you taking drugs or alcohol this could be taken as a sign that you are mentally ill, whether the effect is permanent or temporary).

Here are some essential points about what different kinds of mental health problems can mean for you in a legal sense.


The aim of the law in regards to The Mental Health Act 2014 is primarily recovery orientated. In other words, people need support to recover and should know their rights on decisions regarding their treatments. There are specific laws that protect the rights of people who are receiving compulsory treatment and laws that can protect how you can have control over your treatment.

Advocacy involves knowing your rights, negotiating and speaking up for your rights. If you can’t do it yourself, an advocate may be appointed for you who can assist in any legal matters and decisions that need to be made.

Fitness to plead

The legal issue of fitness to plead arises in terms of a person’s mental or physical capacity under common law to be able to be fit enough to plea in court. If someone is unfit to plea due to a mental or physical incapacity, the trial won’t be able to proceed. This will, of course, depend on the severity of your mental health issues, and the outcome will also be at the discretion of the judge overseeing your case. This can be done at the courts’ instigation and typically arises in the context of cases of mental incapacity. A person found unable to plead on the grounds of insanity may then be dealt with under the relevant mental health legislation.

Rights to health services

Under the Section 37 of the Human Rights Act 2019, every person has the right to access health services without discrimination, and a person shouldn’t be refused emergency medical treatment that is necessary to save the person’s life or to prevent serious harm. There are also other legal rights put in place to protect your rights should criminal charges be put into place, but the judge finds it more suitable to be sent to a hospital rather than prison.

Changes to treatment plans

If you have been put on a compulsory treatment order, you have the right to be involved in all decisions about your treatment, plans and recovery. Legally you have rights over the control of your treatment. Some essential rights are that you can have your treatment changed, revoked or revised. You are entitled to a second opinion by another psychiatrist.

Elder Abuse

Elder abuse is where a perpetrator, who is usually a family member exerts undue influence, pressure and coercion on a person, usually aged and with declining emotional and mental resilience. The perpetrator’s conduct is usually motivated by self-interest, be it financial or otherwise. Offending perpetrators can include those appointed by the person as their Enduring Power of Attorney and/or Enduring Guardian. A good example might be a perpetrator wanting to have the person agree to move out of the person’s home and into a type of care facility that is in the interests of the perpetrator, but not necessarily a facility that the person feels comfortable with, at that point in time. This can cause severe anxiety and exacerbate the incidence of mental illness in the persons being subjected to the offending conduct of the perpetrator. 

Family members and friends of ageing persons need to be alert to this problem during COVID, when perpetrators may be given cause to become more assertive, for reasons to do with their own worsening personal financial and mental conditions, due to COVID. Reasonable suspicion of Elder Abuse should be reported to the person’s solicitor or the Public/Adult Guardian in the relevant jurisdiction.

At Wilson Haynes Law, we are dedicated to achieving the best standards for our clients and helping them to achieve the best results in whatever situation they are in where they need legal advice.

Contact us today for more information on how we can help you with your legal rights.

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