The right to set out preferences for treatment in advance, nominating a person to receive information about your treatment and having the right to a second psychiatric opinion are some of the critical new rights in the Mental Health Act 2014. Bodily restraint now includes “physical” restraint as well as mechanical, and seclusion can only be authorised to prevent imminent and serious harm.
Advance statements of a person’s treatment preferences
Provisions were introduced in the MHA 2014 that provide for a person to make an advance statement setting out their preferences in relation to treatment, to be used in the event they become a compulsory, security or forensic patient.
Advance statements are an important way of documenting wishes, and a factor that must be considered by the authorised psychiatrist and others when proposing treatment or the making of orders at different times, as well as by the MHT when making orders and in determining the setting and duration. They must also be considered in informing a determination of whether treatment is least restrictive.
An authorised psychiatrist may override a person’s preferences in their advance statement when making a decision to administer compulsory treatment, where they are satisfied that the person’s preferred treatment is not clinically appropriate or is not a treatment ordinarily provided by the designated mental health service, in accordance with section 73 of the MHA 2014. The person should be informed of the decision and the reasons for it and may request written reasons, which should be provided within 10 business days after receiving the request.
Section 20 outlines the requirements in making an advance statement, including that it must be in writing, signed and dated by the person making it and witnessed by an “authorised witness”. This can be a registered medical practitioner, a mental health practitioner, or a person who may witness the signing of a statutory declaration under section 30 of the Oaths and Affirmation Act 2018 (Vic).
The advance statement can be made at any time and is effective from the time it is made until it is revoked. Once made, it cannot be amended (s 22 MHA 2014), however it can be revoked in either of two ways: by making a new advance statement, or by revoking it in writing and having it witnessed in accordance with section 21(2).
It is important that the treating team is aware that there is an advance statement. It is recommended that it is placed on the person’s medical file so that it can be identified immediately upon a person being brought to hospital or when they are dealing with the designated mental health service.
The MHA 2014 provides for a person to appoint a “nominated person” who can receive information and will be consulted at different key points in a person’s treatment, including if any restrictive interventions and orders are made. The nominated person does not have any decision-making power, but can provide the person with information and support and assist them to exercise their rights under the MHA 2014 (s 23).
Section 24 sets out the process of making the appointment, including that it be in writing and signed by the person, the nominated person and an authorised witness who is not the nominated person. Appointment is revoked by a new nomination, a document revoking the nomination, or by the nominated person declining to act. If a nominated person declines to act, they must take reasonable steps to inform the person and the authorised psychiatrist.
It is again important that the treating team is aware that there is a nominated person. This information should be placed clearly on the medical file and handed to the treating team.
For a person subject to a TTO or a TO, or a security patient or a forensic patient, the law specifically articulates a person’s right to seek a second psychiatric opinion at any time in relation to their treatment and whether they meet the treatment criteria.
Although the psychiatrist providing the second opinion cannot override the treatment prescribed by the authorised psychiatrist, the MHA 2014 establishes a process for the authorised psychiatrist to – in certain circumstances – assess again whether the person meets the treatment criteria (s 85) and review again the person’s treatment (s 86).
If the authorised psychiatrist adopts none, or only some, of the recommended changes in the report, the person can apply to the Chief Psychiatrist for a further review (s 87). The Chief Psychiatrist must then review the person’s treatment, and may examine the person and access health information at the designated mental health service (s 88). The Chief Psychiatrist has the power to recommend or direct changes to the person’s treatment.
The Second Psychiatric Opinion Service can be contacted on 1300 503 426.
The MHA 2014 authorises the use of restrictive interventions such as restraint and seclusion, but aims to improve safety and accountability in their use. Both restraint and seclusion are highly intrusive practices that can cause trauma and distress, and have been associated with serious harm and even death.
Part 6, division 1 sets out general principles for the use of restrictive interventions, including that:
• they may only be used after all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable (s 105);
• when used, a person’s needs are met and dignity protected, including provision of facilities and supplies (s 106); and
• as soon as practicable after it is commenced, relevant people including the nominated person, are notified (s 107).
Bodily restraint now includes “physical or mechanical restraint that prevents a person having free movement of their limbs”, not including the use of furniture. Previously only mechanical restraint was regulated.
The grounds for use of bodily restraint are more limited and it can only be used if necessary to prevent imminent and serious harm to the person or someone else, or to administer treatment or medical treatment to the person (s 113 MHA 2014). Persistent destruction of property is not a valid ground. The use of bodily restraint must be authorised by the authorised psychiatrist, or if they are not immediately available, a registered medical practitioner or the senior registered nurse on duty, in accordance with section 114. Section 115 provides for the use of urgent bodily restraint where necessary as a matter of urgency to prevent imminent and serious harm to the person or someone else, and where none of the authorising clinicians are immediately available. Monitoring must also take place in accordance with section 116, including clinical reviews by a doctor or a nurse at least every 15 minutes and examination by an authorised psychiatrist or a doctor as directed at least every four hours.
Seclusion is defined as confining a person, alone, to a room or other enclosed space from which it is not within their control to leave. Under section 110 of the MHA 2014, seclusion can only be authorised if it is necessary to prevent imminent and serious harm to the person or to someone else. Seclusion cannot be used to prevent a person from absconding.
Like bodily restraint, seclusion must be authorised in accordance with section 111 by the authorised psychiatrist or doctor or senior registered nurse. However, there is no provision for the use of urgent seclusion. Seclusion must also be monitored in accordance with section 112, including clinical observations at least every 15 minutes and examination by the authorised psychiatrist or doctor as directed at least every four hours.
A patient (a compulsory, security or forensic patient) may be given medical treatment (as opposed to treatment for mental illness) once informed consent is obtained. However, where the person does not have the capacity to give informed consent, the MHA 2014 provides for obtaining consent from the first available, willing and able person from the following list:
• the patient’s appointed medical treatment decision-maker within the meaning of the Medical Treatment Planning and Decisions Act 2016 (Vic);
• a person appointed by VCAT to make decisions about proposed medical treatment;
• a person appointed under a guardianship order who has the power to make decisions about the proposed medical treatment;
• the authorised psychiatrist if satisfied that:
1 it would benefit the patient and there are serious risks in delaying the treatment,
2 the patient will not regain capacity within a reasonable time.
Medical treatment can be performed without consent when a health practitioner is satisfied that the medical treatment is urgently needed to save the person’s life, prevent serious damage to their health or prevent them suffering or continuing to suffer significant pain or distress.
Medical treatment includes any medical or surgical procedure, operation or examination normally carried out by or under supervision of a doctor, as well as dental treatment and the administration of prescription drugs (s 7).
Medical treatment does not include a “special procedure” (procedures related to fertility, pregnancy or tissue donation) or medical research procedure, which are covered by part 4A of the Guardianship and Administration Act 1986 (Vic).