Treatment is defined as things done with professional skill to remedy the illness or disorder or to lessen the ill effects or the pain and suffering which it causes (s.3). Only treatment that is not cruel, inhuman or degrading can be given to a person, otherwise it will be a breach of the Charter (see: "Charter of Human Rights and Responsibilities", above).
A voluntary patient can refuse treatment or withdraw consent to treatment at any time. Special procedures are very serious procedures such as sterilisation, abortion, transplants and research treatment. They can only be performed without a person's consent if the Guardianship List at the VCAT approves the procedure (see: "Consent to medical treatment", in Chapter 16*6 Guardianship and Administration).
If an involuntary, security or forensic patient refuses or is not capable of consenting to treatment for their mental illness, consent in writing may be given by the authorised psychiatrist (ss.12AD(2), 16B(2) & 17A(2) MHA) (but also see below). These patients should still be given sufficient information about their psychiatric treatment and their preferences should be considered. They can also request a second opinion from another psychiatrist.
Depending on the nature of the treatment, two types of "informed consent" are required under the MHA. A more stringent "informed consent", set out in section 53B, is required for the following procedures:
- psychosurgery;
- electroconvulsive therapy (ECT); and
- major non-psychiatric treatment.
Consent in writing may only be given after a person has:
- to obtain legal and medical advice (including a second psychiatric opinion) and to be represented before giving consent; and
- to refuse or withdraw their consent and to discontinue all or any part of the treatment at any time; and
- advising the person of their legal rights, including the right:
- containing any other information relating to the treatment that the DHS considers relevant; and
- been given a clear explanation with enough information to enable them to make a balanced judgment;
- been given an adequate description of benefits, discomforts and risks without exaggeration or concealment;
- been advised of any beneficial alternative treatments;
- had their questions answered, if relevant, and understood the answers;
- been given a full disclosure of any financial relationship between the service where treatment will be given and any registered medical practitioner who is seeking the person's informed consent or who will perform the treatment;
- been given the appropriate prescribed printed statement:
- had the information in the statement explained to them in the manner they are most likely to understand.
Psychosurgery can only be performed on a person who has given section 53B informed consent (see above). It is a contravention of the MHA as well as professional misconduct for a doctor to perform psychosurgery without the informed consent of the patient (s.57). A psychiatrist must also apply to the Psychosurgery Review Board for the Board's consent to carry out psychosurgery.
Under the MHA, performing ECT on a person without section 53B consent is an offence. There are two exceptions to this,
- Where the person is incapable of giving informed consent and the therapy is urgently needed (rarely used); or
- The person is incapable of giving informed consent (eg they are subject to an ITO or CTO) the authorised psychiatrist orders it after other treatments have been considered, the ECT has clinical merit, the patient's condition is significantly deteriorating, and all reasonable attempts have been made to contact the patient's guardian or primary carer.
A medical practitioner who performs the therapy in contravention of the Act may be found guilty of professional misconduct by the Medical Practitioners Board, unless they can show valid reasons for doing so (section 73(2)).
A person who gives informed consent to ECT consents to a series of up to six treatments of ECT over a period, with not more than seven days elapsing between any two treatments. The person can withdraw consent at any time.
The Chief Psychiatrist publishes guidelines on the use of ECT. They state that, amongst other things a second opinion should be sought before ECT is administered involuntarily. If a person does not wish to have ECT, they should seek urgent legal advice regarding the possibility of seeking an injunction in the Supreme Court to prevent ECT.
The Chief Psychiatrist issues written guidelines as to types of treatment regarded as major non-psychiatric treatment. To date these have included: operations, anaesthesia, radiotherapy and chemotherapy.
MHA section 53B consent must be obtained for major non-psychiatric treatment if a person is capable of consenting. If such consent cannot be obtained, treatment can be provided without consent as set out for non-psychiatric treatment.
Non-psychiatric treatment is defined as that which does not have as its primary purpose the treatment of a mental disorder (s.83 MHA). Voluntary patients can choose whether to consent to or reject non-psychiatric treatment. Involuntary, security or forensic patients may be given non-psychiatric treatment without their consent if:
- it is emergency treatment necessary to save the person's life, or prevent serious damage to the person's health or significant pain or distress; or
- the person is incapable of giving informed consent.
In the latter case, the person first on the following list who is able to can consent on a patient's behalf (s.85):
- an agent appointed under the Medical Treatment Act 1988 (Vic) (s.5A);
- a guardian or other person appointed by VCAT (see: Chapter 16*6 Guardianship and Administration);
- a guardian appointed under an enduring power of guardianship (see: Chapter 16*7 Powers of Attorney); or
- the authorised psychiatrist.
People under 18 who are unable to consent (see: "Medical treatment", in Chapter 6*1 Rights and Duties of Young People) may be given non-psychiatric treatment with the consent of a parent, guardian, person appointed under the Children, Youth and Families Act 2005 (Vic) or authorised psychiatrist.
The authorised psychiatrist must act in the person's best interests, consider the person's wishes and consider whether treatment can be delayed until the person is capable of consenting.
For non-psychiatric treatment that is not regarded as major, consent is informed where the person has been given a clear explanation of the proposed treatment and has been advised as to its necessity (s.84 MHA).
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TREATMENT AND CONSENT :: Last updated: Thu Jul 1st 2010