Mental illness and psychiatric disability
Psychiatric disability can refer to a range of mental illnesses and mental disorders that are distinct from other cognitive impairments and intellectual disabilities. For the purposes of the Mental Health Act 2014 (Vic), “mental illness” is defined as “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory” (s 4(1)). This definition is unchanged from the Mental Health Act 1986 (Vic).
The 2014 Act subtley changed (marked “*” in the list below) the criteria that cannot of themselves be indicative of mental illness:
• expressing, refusing or failing to express a particular political or religious opinion or belief or a particular philosophy;
• expressing, refusing or failing to express a particular sexual preference, gender identity* or sexual orientation;
• engaging, refusing or failing to engage in a particular political or religious activity;
• engaging in sexual promiscuity, or illegal or immoral conduct;
• engaging in antisocial behaviour;
• being intellectually disabled;
• using drugs or consuming alcohol, although the serious temporary or permanent physiological, biochemical or psychological effects of their use may be regarded as an indication the person has mental illness;
• having a particular economic or social status or belonging to a particular cultural or racial group;
• having been involved in family conflict*; and
• having previously been treated for mental illness.*
Treatment and detention of people with intellectual disabilities is covered by the Disability Act 2006 (Vic), not by mental health legislation (see Intellectual disability). Although, there have been disturbing cases of individuals (particularly those with Autism) being detained on psychiatric wards for reasons other than mental illness.
The Mental Health Act 2014 (Vic) (“MHA 2014”) came into force on 1 July 2014. It repeals and replaces the Mental Health Act 1986 (Vic) (“MHA 1986”) and makes considerable changes to the legal framework for the assessment and treatment of people with a mental illness in Victoria, especially in relation to compulsory assessment and treatment.
The MHA 2014 articulates a more human rights-promoting approach to assessment and treatment in mental health services than previously. It does this by encouraging a dialogue with the treating team and patient, by seeking to reduce the use of compulsory treatment, by establishing a recovery oriented framework for treatment, by increased safeguards and protection of the rights of people receiving compulsory treatment, and by improved oversight.
However, in the past year across mental health services, there has been a nine per cent increase in the use of compulsory treatment orders. In this respect, the aim of the MHA 2014 to reduce the number of treatment orders has been unsuccessful.
The MHA 2014 uses new terminology. “Involuntary” treatment is now called “compulsory” treatment. An “involuntary” patient is now called a “compulsory” patient. The term “designated mental health services” replaces “area mental health services” to refer to services with the authority to provide compulsory mental health treatment and detention (in the case of hospitals). The Mental Health Tribunal Victoria (MHT) is now the independent statutory tribunal safeguarding the making of compulsory treatment orders, with additional powers and functions to its predecessor, the Mental Health Review Board. There are also changes to the types, names and criteria for compulsory treatment orders.
The second reading speech on the introduction of the new law makes it clear that the government intends the new law to minimise compulsory mental health treatment, and to ensure that the person with the mental illness is put at the centre of decision-making and provided with support to “make or participate in decisions about their assessment, treatment and recovery”. This fundamental shift in the way mental health services are provided is consistent with recovery-oriented practice. It is also reflected in the objectives of the MHA 2014 (s 10), which include:
• assessment of persons who appear to have, and the treatment of persons who have mental illness;
• assessment and treatment in the least restrictive way possible with the least possible restrictions on human rights and human dignity;
• protection of the rights of persons receiving assessment and treatment, and ensuring they are informed of their rights;
• enabling and supporting the persons to make, or participate in, decisions about their assessment, treatment and recovery, and exercise their rights;
• oversight and safeguards for assessment and treatment;
• promoting recovery;
• recognition of the role of carers in a person’s assessment, treatment and recovery.
Recovery, as the second reading speech states, “is about maximising individual choice, autonomy, opportunity and wellbeing during a person’s life and accordingly is a self-defined process that is highly individual”.
MHA 2014 (s 11) also establishes a more comprehensive and rights-promoting set of mental health principles. Mental health service providers (MHSPs) must consider these principles when providing mental health services. These principles must also be applied by anyone who performs any duty or function or exercises any power under the MHA 2014. The principles include:
• providing the least restrictive assessment and treatment, with voluntary assessment and treatment preferred;
• providing mental health services that aim for the best possible therapeutic outcomes, promote recovery and full community participation;
• involving and supporting people to make or participate in all decisions about their assessment, treatment and recovery, and respecting their views and preferences;
• allowing people to make decisions involving risk;
• respecting and promoting people’s rights, dignity and autonomy;
• recognising and responding to people’s individual needs, including their medical and other health needs (e.g. alcohol and drug problems), their cultural and linguistic needs, their Aboriginality, their communication needs, and their needs in regards to their age, religion, gender and sexual identity;
• promoting the best interests of children and young people, including separate services from adults whenever possible, and protecting their needs, wellbeing and safety;
• involving carers (including children who are carers) in decisions about assessment, treatment and recovery whenever possible, and recognising, respecting and supporting their role.
In addition, section 8 requires that any advice, notification or information given to a patient under the MHA 2014 is explained to the maximum extent possible in the language, mode of communication and terms which they are most likely to understand and that, whenever reasonable, such information is given both orally and in writing.
The MHA 2014 also enshrines and gives effect to the fundamental principle that a person is presumed to have capacity to give informed consent to treatment, and can make their own decisions (s 70(2)). Only where there is evidence the person does not have capacity to consent, should this presumption be displaced. The presumption of capacity and definitions of capacity, informed consent and other capacity principles are outlined below.
For more information about the new MHA 2014, see the handbook from the Victorian Government Department of Health and Human Service (DHHS), Mental Health Act 2014 Handbook (at www.health.vic.gov.au/mentalhealth).