Mental Health Legislation

Objective: In some Australian states clinicians and mental health tribunal members are already required to assess a person’s decision-making capacity before involuntary treatment can be applied. Professionals in other jurisdictions will likely soon be required to do the same as mental health law reform in most Australian jurisdictions makes the assess- ment of decision-making capacity a central component of the process of providing unconsented psychiatric treatment. We provide a guide to the legal issues around the capacity to refuse psychiatric treatment to assist with this task.
Method: We review the legislation in the four Australian states most advanced in the mental health law reform pro- cess and use examples from clinical practice and the common law to describe how decision-making capacity should be assessed by these statutory standards.
Results: Clinicians and tribunal members will primarily be required to judge whether a person with mental illness can understand the information relevant to the treatment decision and whether he or she can use or weigh that information to come to a decision. A person with a mental illness is presumed to have capacity, but that presumption can be rebut- ted. Capacity is specific to the decision at hand and cannot be determined by the nature of the decision made.
Conclusions: The information provided should assist clinicians and tribunal members to make determinations of deci- sion-making capacity around treatment refusal in the context of mental illness.

23-1. Les mesures de contrôle constituent des mesures exceptionnelles visant exclusivement la protection de l'intégrité des personnes et ne pouvant être administrées qu'en dernier recours. L'expression « mesures de contrôle » désigne l'usage de l'isolement, des contentions physiques ou mécaniques ou de la médication dans le seul but de prévenir des blessures 1 ; toute utilisation à des fins disciplinaires ou punitives est prohibée 2 . 23-2. L'encadrement législatif des mesures de contrôle apparaît à l'article 118.1 de la Loi sur les services de santé et les services sociaux 3 : La force, l'isolement, tout moyen mécanique ou toute substance chimique ne peuvent être utilisés, comme mesure de contrôle d'une personne dans une installation maintenue par un établissement, que pour l'empêcher de s'infliger ou d'infliger à autrui des lésions. L'utilisation d'une telle mesure doit être minimale et exceptionnelle et doit tenir compte de l'état physique et mental de la personne.

Objective: To analyse, and explain to Australasian psychiatrists, recent proposed changes to the terms of coercive treatment for mental illness in Tasmania and Victoria and to place the proposals in the context of a broader human rights framework that is likely to impact the future shape of mental health legislation more generally.

Methods: The Australian law reform proposals are reviewed against the requirements of numerous human rights instruments, including the recently ratified United Nations Convention on the Rights of Persons with Disabilities. Ethical and legal arguments are made to support the proposed changes and to introduce others, taking into account academic commentary on mental health law and recent empirical work on the ability to usefully categorise patients by their likelihood of harm to self and others.

Results: The Victorian and Tasmanian draft mental health bills propose a new basis for compulsory psychiatric treatment in Australasia. If they become law, coercive psychiatric treatment could only be applied to patients who lack decision-making capacity. The Tasmanian draft bill also sets a new benchmark for timely independent review of compulsory treatment. However both jurisdictions propose to retain an ‘additional harm’ test which must be satisfied before patients may be treated without consent. This differs from non-psychiatric cases, where if patients are unable to consent to medical treatment for themselves, they will be entitled to receive coercive treatment if it is in their best interests.

Conclusions: The proposed changes under the Tasmanian and Victorian draft mental health bills will ensure that, in line with local and international human rights obligations, only patients who lack decision-making capacity may be coercively treated for mental illness. However the continuing ‘additional harm’ criteria may breach human rights obligations by imposing a discriminatory threshold for care on patients who are unable to consent to treatment for themselves. This could be avoided by replacing the ‘additional harm’ test with a ‘best interests’ test.

First paragraph ...
In 2012 we reported that Australian mental health legislation was on the verge of a revolution. That revolution has begun. It has been clear for some time that the criteria for detention and involuntary treatment for mental illness would need to be revised and remodelled in light of the requirements of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’). Article 12, one of the key provisions of the CRPD, requires states parties to replace involuntary treatment provisions in mental health laws with a new model of ‘supported decision-making’. While there is still some debate about exactly what a supported decision-making model would entail in mental health, in broad terms it requires that treatment decisions must be made by the person themselves as often as possible – rather than through involuntary orders made by doctors and tribunals – with support being made available to assist the person in making decisions if they wish. It also requires that substituted decision-making, including via involuntary treatment orders, may occur only in very limited circumstances, if indeed it is to be permitted at all. In any case, substituted decisions must reflect the person’s known ‘will and preferences’ (using the language of the CRPD) rather than paternalistic formulae such as the ‘best interests’ tests traditionally used in guardianship schemes.