What consumers want from new mental health

laws

A consumer forum by the

Mental Health Legal Centre

Thursday 17 February 2011Lionel Murphy Centre

© Mental Health Legal Centre Inc.

Session 1 - Compulsory treatment & refusing treatment

What does the draft bill say about:

1. Compulsory treatment / involuntary treatment2. Refusing treatment3. Responsibilities on treating team – treatment planning

Compulsory treatment & refusing treatment

Still in the draft bill –

• You can still have compulsory treatment in community (CTO) & compulsory treatment and detention in hospital (ITO)

• Can be forcibly treated if you are refusing treatment (if invol patient)• Can refuse treatment provided you are a voluntary patient• Treatment plans for CTOs

but proposed law is different –• process for being placed on an order• criteria for involuntary treatment (“5 criteria”)• the names of some orders and who can make them & max length• who clinician must notify when order made• second opinion after 3-months invol treatment• treatment plans & how planning occurs – eg. no TP for inpatient• carer involvement in treatment planning

Key changes to the process –

1. Staged system of ‘compulsory orders’ (new name)2. Must take into account views of “nominated person” & notify them if order made3. Psychiatrists cannot extend CTO. Only Mental Health Tribunal (old MHRB) can

make “extended” order. Psychiatrist must make application.

Inpatient – after 28 days (4 weeks) - MHT can make “extended inpatient treatment order”

CTO – after 3 months – MHT can make “extended community treatment order”

* But no limit to number of times MHT can make an extended order (same as MHA)

Compulsory treatment - process

Key changes to the (max) length of orders, who makes them & initial t’ment

Compulsory treatment - process

3 days – to be taken to hospital

Community t’ment order (CTO)

3 months

Inpatient t’ment order (ITO)

28 days

Extended Inpatient T’ment Order (MHT)

6 mths

Extended Community T’ment Order (MHT)

18 mths

Current MHA -

Draft Bill -

Request & recommend’n

3 days – taken to clinic or hospital for Assessment

Involuntary t’ment order (ITO) (hospital) – no limit

Extension of CTO (new CTO - psych)

12 mths

Interim ITO

24 hr –auth psych exam’n (hospital)* Immed t’ment Community t’ment

order (CTO)

12 months

24 hrs x 3 (3 days) detention in hospital* Minimum t’ment - to save life / distress

Assessment Order

Compulsory treatment – 5 criteriaWhat does the draft bill say -

1) Person has a mental illness (Assessment order - “appears to have”)2) T’ment would be likely to (i) prevent MI worsening, or (ii) alleviate its

symptoms or effects + available at MHS3) “imminent and significant risk” of “serious harm” to self/others,

or “significant risk” of “serious physical or mental deterioration”

4) Because of MI, ability to make decisions is “significantly impaired” “significantly impaired” = unable to:- Understand relevant info- Retain that info- Use, weigh or appreciate that info in process of making decision- Communicate the decision

5) All reasonable less restrictive options (inc. Vol t’ment) have been considered & are not suitable

Compulsory treatment – 5 criteriaWhat does this all mean?

1) Mental illness – more in line with WHO says, but Assessment Order still authorises invol t’ment

2) Treatment is necessary – essentially the same as MHA3) Risk – confirms how MHRB has interpreted risk in MHA; significant risk of

serious deterioration is still broad4) Unable to consent – now phrased as “significant impairment” in ability to make

decision- New “consent” or “capacity” test now more explicit- Will psychiatrists assess this differently?- “refusing t’ment” removed from criteria, but contained elsewhere in the draft bill5) No less restrictive alternative – essentially the same

What is left out?• “effectiveness” of treatment must outweigh the negative side effects (from

MHRB caselaw)• ??

Refusing treatment• What is autonomy?

– Presumption that all adults have capacity to make decisions (“capacity” / “competence” – legal terms)

– No treatment without consent – if not, an assault– Right to consent & right to refuse– If don’t have capacity someone else may make decisions (eg.

Enduring Guardian, or Guardianship Order)

• Under current Mental Health Act (MHA)– If “voluntary patient” – can refuse t’ment prescribedBUT– If refuse, could use as evidence to satisfy 4th criterion for involuntary

treatment (“consent”)

• Under new draft bill– Refusing treatment – no longer part of invol t’ment criteria– Still no right to refuse treatment– Even if you do have “decision-making capacity” – can be forcibly given

treatment

Treatment – you & the treating team

New responsibilities of treating team & “treatment planning”

1. Who must be notified when order made?• Nominated person – someone you choose2. Treatment plans • No TP for inpatients, only for community treatment• views of carer with the consent of person (reverse responsibility)3. Content of treatment plan• Statement of wishes & preferences (eg. advance statement)• Explain how reflects person’s wishes & views of others consulted• Examination of treatment alternatives• Accommodation if discharged into community5. “Collaborative” treatment-planning• with i) person, ii) nominated person & ii) carer with the consent of person6. Second opinion after 3 months• Panel of 2nd opinion psychiatrists – must arrange (not employed by MHS)• May i) confirm t’ment or ii) not confirm t’ment auth psych review TP

Session 1 - Compulsory treatment & refusing treatment

Summary – key things the draft bill says:

1. Compulsory / involuntary treatment & 5 criteria remain essentially the same, except

– Psychiatrist cannot extend orders (ITO – 28 days, CTO – 3 months)– Only MH Tribunal can make them

2. Still no right to refuse treatment3. Extra responsibilities on treating team

- notifying nominated person when order made- views of carers ONLY AFTER you give your consent (reversed)- TP – wishes & preferences of person, explain how plan reflects these- TP – examination of treatment alternatives, accommodation in comm’ty- Second-opinion after 3 months – appointed by MHS review of TP

Session 2 – Reviews and appeals & new Mental Health Tribunal

What does the draft bill say about:

1. Review officers2. When does Mental Health Tribunal review an order?3. How does the Mental Health Tribunal review an order?4. Legal representation

Reviews & appeals & the (renamed) Mental Health Tribunal

Still in the draft bill –

• “Mental Health Tribunal” (MHT) – sits in Department of Health• Responsible for reviewing orders (NOT Assessment order) • Right to appeal “application for revocation”• 3 members in most hearings (single-member now more limited)

but proposed law is different –• Doctor OR psychiatrist member of Tribunal• “expert” member = consumer? on the Tribunal• review officers – new position• timing & frequency of review hearings • process – hearings, access to files, who can appear

3 days – to be taken to hospital

Community t’ment order (CTO)

3 months

Inpatient t’ment order (ITO)

28 days (4 weeks)

Extended Inpatient T’ment Order (MHT)

6 mths

Extended Community T’ment Order (MHT)

18 mths

Current MHA -

Draft Bill -

Request & recommend’n

3 days – taken to clinic or hospital for Assessment

Involuntary t’ment order (ITO) (hospital) – no limit

Extension of CTO (new CTO - psych)

12 mths

Interim ITO

24 hr –auth psych exam’n (hospital)* Immed t’ment

Community t’ment order (CTO)

12 months

24 hrs x 3 (3 days) detention in hospital* Minimum t’ment - to save life / distress

Assessment Order

How long before you have hearing?Current MHA – 8 weeksDraft Bill – inpatient - 7 weeks (3 days + 3 days + 4 wks + 2 wks extension)

- CTO – over 3 months (3 days + 3 days + 3 months + 2 wks extn)

Reviews & appeals & the (renamed) Mental Health Tribunal

Review officers• no specific qualifications – “skill and experience necessary”• Not independent (compare Community Visitors, lawyer)

MUST• Meet person within 7 days of involuntary order

(ASAP if Assessment Order)• Check order complies with law• “Inform” person of their rights – is this / should this be legal advice?• if error or mistake

Refer to MHS for “remedial action” Apply to MHT if no action MHT may “correct”

Reviews & appeals & the (renamed) Mental Health Tribunal

Process of MHT• access to file – no longer ≥ 24 hrs prior• Some hearings “on the papers” – ie. without person present, and

without anyone from treating team present• Can order person/consumer not attend in person if “would be

significantly detrimental to his/her health”

MHT must make sure• Person has opportunity to be heard / “natural justice” (same as MHA)• person understands what MHT does, its decision, reasons for any

decision• “appeal” determined within 10 business days (2 weeks)

Legal representation• right to lawyer remains• < 10% legal representation• VLA & MHLC cannot meet demand with current funding

Session 2 – Reviews and appeals & new Mental Health Tribunal

Summary – key things the draft bill says

1. Review officers- Not independent, not lawyers- Info on rights & check for errors

2. How soon before reviewed by MHT?- Almost the same (inpatient) = 7 weeks ; far longer (CTO) = > 3 months- Less frequent reviews (CTO) - 18 months not 12 months

3. Mental Health Tribunal–- Doctor OR psychiatrist member- Can order person not attend, can decide without doctor to cross-examine- Must make sure person understands process, decision & reasons

4. Legal representation- Will this be adequately funded?

Session 3 – Supported dec’n-making, advance statements & nomin’d person

What does the draft bill say about:

1. Advance directives / “advance statements” – how to make one, status

2. Nominated person – how to appoint, what is their role

Does the Bill “adopt a supported decision-making approach?”

Supported decision-making

What is it?

Difference between • you making your own decision, with support from someone else

[supported]• Someone else making the decision on your behalf [substitute]

ie.• Decision-making WITH• Decision-making FOR

If involuntary patient – authorised psychiatrist = substitute

Advance “statement”

How does Bill define it?• Written document

• Person specifies wishes and preferences:

- How want to be treated

- How don’t want to be treated

- Personal preferences that relate to treatment for mental illness

- Consent or not to obtain family / carer views

Making an advance statement• Signed by person

• Certification by lawyer, health professional at MHS or authorised witness for Stat Dec:

- Confirming signature of person

- Person appears to understand the effect

• Can withdraw

• Latest advance statement automatically revokes earlier one

Advance “statement”

Weight / status?• Clinicians & Mental Health Tribunal MUST

- have regard to an advance statement

- If capacity is significantly impaired

How to find out if the person has an advance statement?• Check their medical record

Overriding advance statement• If decision is inconsistent with advance statement, MUST

- Record circumstances & reasons

- Give in writing to person, nominated person, authorised psychiatrist & Mental Health Commission

• Mental Health Commission

- Monitor and report

Nominated personRole?• Receive information – when order made, if hearing at MHT, ECT proposed

• Being consulted – making involuntary order, treatment

Appointing a nominated person• Limited to one

• In writing, signed by person

• Statement by NP – agrees to being NP

• Certification by lawyer, MH professional or authorised witness for Stat Dec:

- Confirming signature of person

- Person appears to understand the effect

- NP agrees

Resignation & revocation• Can resign

• Authorised psych can apply to MHT to revoke nomination

- Not appropriate person

• Revoke eg. likely to significantly adversely affect the patient’s interests

Session 3 – Supported dec’n-making, advance statements & nomin’d person

Summary – key things the draft bill says

1. Advance statements- Formal recognition of wishes & preferences – included in treatment plan- Certification by lawyer, MH professional, Stat Dec witness- Not enforceable – “have regard to”- Process for overriding – write to person & Mental Health Commission

2. Nominated person- Appointed by the person themselves- Limited to one person- Right to be notified & consulted, no decision-making power- May be revoked by MH Tribunal

Session 4 – ECT

What does the draft bill say about:

1. Who authorises ECT & the process2. Role of the Mental Health Tribunal3. ECT and young people4. Emergency ECT

ECT

Still in the draft bill –

• Involuntary ECT• Can refuse ECT treatment if voluntary patient• “emergency” ECT provisions (not used under current MHA)

but proposed law is different –

• Increased number of treatments in course – 12 (not 6)• Voluntary patient – auth psych must certify not merely be “satisfied”

benefit & least restrictive• Process for authorising ECT - adults• Process for authorising ECT– young people 13-17yo• MHT’s role and power re: ECT• Criteria for ECT in emergency

ECTCurrent MHA -Involuntary ECT – authorised psych “satisfied” that:- Clinical merit- discomforts, risks, beneficial alternatives considered- Likely to suffer a significant deterioration in physical or mental condition

Draft Bill –If involuntary patient – MHT “determines in hearing” informed consent OR - If unable to consent, determines if ECT is for the person’s benefitMUST consider

- wishes/preferences incl adv stmt- Views of nominated person- Family / carer with consent of the person

- “reasonably available” alternatives unsuccessful or ECT most appropriateYoung people- 13-17years – ECT may be performed provided MHT authorises it

Emergency ECT – to save person’s life – no need to go to the MHTPenalties for not complying with process (previously stated “offence”)

Session 4 – ECT

Summary – key things the draft bill says

1. Involuntary ECT – adults- MHT not the authorised psychiatrist who authorises- Based on best interests of the person- More onerous requirements on auth psych – (appln + certificate by

reg’d psych + doctor)2. Only MHT can authorise ECT on young people 13-17yrs3. Emergency ECT - avoids MHT - Auth psych authorises upon written certification by doctor + psych- ? can describe ECT as an “emergency” treatment?4. Penalties for not complying

Session 5 – Complaints & the Mental Health Commission

What does the draft bill say about:

1. The new Mental Health Commission and its role2. The Office of the Chief Psychiatrist3. Enforcing compliance after complaints

Complaints

Current MHA -

Office of Chief Psychiatrist – dual role of both:- Peer support/training of mental health service/s- Taking complaints about treatment

No time limits for investigation

Unclear process & outcomes

ComplaintsDraft Bill –• Newly established Mental Health Commission to take complaints (no longer

with conflicted OCP) - Location similar to Health Services Commissioner

ROLE incl:- Advice & implementation for local complaints- Investigate any matter re: MHS referred by Minister

- Preliminary assessment within 60 days whether action will be taken- Monitor use of advance statements- Monitor numbers of nominated personsBUT - Not investigation of own motion

POWERS incl:- Conciliate complaint- Formally investigate- Issue compliance notice

OCP – more coordinated audit function

Session 5 – Complaints & Mental Health Commission

Summary – key things the draft bill says

1. Complaints now in hands of Mental Health Commission, not OCP- Broad power to monitor, report & investigate (except on own motion)- Time limits to respond- Process & powers & responsibilities better definied- Power to conciliate, formally investigate, issue compliance notices

2. OCP – audit and peer support role

More information

Mental Health Legal Centre

9th Floor, 10-16 Queen Street

Melbourne

Tel: (03) 9629 4422

Fax: (03) 9614 0488

www.communitylaw.org.au/mentalhealth

Review of the Mental Health Act – website:

http://www.health.vic.gov.au/mentalhealth/mhactreview/

Submission deadline: Monday 28 February 2011