Mental illness

‘Treatment’ for mental illness is defined in section 5(1) of the MHWA to mean things ‘done to the person in the course of the exercise of professional skills: i to remedy the mental illness; or ii to alleviate the symptoms and reduce the ill effects

of the mental illness.’ [emphasis added]. Section 5 states that treatment is treatment for mental illness, including electroconvulsive treatment and neurosurgery, but that detention is not treatment. An intervention that reduces the ill effects of a person’s mental illness without also alleviating the symptoms does not meet the definition of treatment. For example, detention in hospital in and of itself does not meet this definition since it cannot be said to alleviate symptoms of the illness, nor remedy it. Also, keeping a person in hospital because they do not have access to suitable accommodation is not treatment. It is also hard to see how other interventions (e.g. monitoring and supervision of medication by staff) alone constitute ‘treatment’ under this definition.

Informed consent is given when a person has been given adequate information and a reasonable opportunity to make a decision.

Capacity to give informed consent means that a person can understand the information given to them about the decision, can remember the information and can use or weigh the information to communicate their decision (s 87). A person must be given adequate information to make an informed decision and given a reasonable opportunity to decide whether to consent. Consent must be given freely, without undue pressure or coercion and can be withdrawn at any time either verbally or in writing.

Before treatment or medical treatment is given to a person under the MHWA, the patient’s informed consent must be sought. This includes treatment provided under a CTO. Treating teams must start by presuming a patient has capacity to give informed consent. If the treating team reasonably believes the patient does not have capacity to give informed consent, the patient’s informed consent does not have to be sought (s 85). If a voluntary patient withdraws their consent after the commencement of the treatment, treatment must stop.

Capacity is decision-specific and may change over time. Psychiatrists should seek a person’s informed consent for each treatment decision that needs to be made (s 85(1)). Incapacity should not be assumed based only on the person’s age, appearance, condition, an aspect of the person’s behaviour, or whether their decision could be considered unwise. The assessment of a person’s capacity (or rather, incapacity) should be conducted at a time and in an environment where it can be most accurately assessed. Treating teams should consider whether providing a patient with appropriate supports will enable them to give informed consent (s 87(2)). Appropriate supports are defined in s 6.

Adequate information to enable a patient to make an informed decision means they have been given:

• an explanation of the proposed treatment or medical treatment, including the purpose, type, method and likely duration of the treatment;
• an explanation of the advantages and disadvantages of the treatment, including any common side effects or risks;
• an explanation of any beneficial alternative treatments available;
• answers to any relevant questions and any other relevant information likely to influence their decision;
• an explanation of the advantages and disadvantages of not undergoing the treatment;
• providing and explaining a statement of rights specific to the proposed treatment (s 86(2)). A reasonable period of time to consider the decision includes giving patients an opportunity to discuss matters with the relevant treating team, appropriate supports and a reasonable opportunity to obtain advice or assistance (s 86(3)). Consent given freely means a person must not feel they have to give informed consent simply because the treating team believes it is necessary for their treatment or in their best interests or to please a family member or carer. In PBU & NJE v Mental Health Tribunal [2018] VSC 564 (‘PBU & NJE case’) – a case about the provision of ECT – Justice Bell stated that it is enough that ‘the person … is able to make and communicate a decision in broad terms as to the general nature, purpose and effect of the treatment’ [280]. The test must be applied in a non-discriminatory manner and requires an assessment of whether the person has the capacity to use and weigh the relevant information, not whether they actually do use and weigh the relevant information. ‘To impose upon persons having a mental illness a higher threshold of capacity, and to afford them less respect for personal autonomy and individual dignity, than people not having mental illness,’ Justice Bell stated, ‘would be discriminatory’ [280]. Patients who are concerned they were not given sufficient information, opportunity or support to make their own decisions can complain to the Victorian Mental Health and Wellbeing Commission. If the person is a compulsory patient, an application for revocation of the order may be appropriate.

There are limited circumstances when treatment can be provided to a person when they do not have capacity to give informed consent, or they do not give informed consent to treatment. An authorised psychiatrist can make a treatment decision for a patient if satisfied the treatment is clinically appropriate and there’s no less restrictive way for the patient to be treated. Treatment under a compulsory assessment order A person under a compulsory assessment order can only be given treatment without consent if a registered medical practitioner is satisfied that urgent treatment must be given to prevent serious deterioration in the patient’s mental or physical health or to prevent serious harm to the patient or another person (s 142 MHWA).

Indications of urgency might include that the person is suffering significant distress, or where a delay in treatment might exacerbate a deterioration in the person’s mental health that could result in serious harm. (See below for more information on assessment orders). Treatment that does not accord with a patient’s advance statement of preferences An authorised psychiatrist can only make a treatment decision that is not in accordance with the patient’s advance statement of preferences if:

• they are satisfied that the patient’s preferred treatment is not clinically appropriate; or
• the patient’s preferred treatment is clinically appropriate but unable to be provided at the designated mental health services, despite all reasonable efforts being made to provide that preferred treatment. The authorised psychiatrist must inform the patient and their nominated support person (if they have one) and provide reasons for that decision in writing within 10 business days.

  Treatment under a compulsory treatment order

  The MHWA requires that a person who is subject to an order for compulsory treatment (such as a TTO or a TO) is to be given treatment for their mental illness. While a person’s informed consent must always be sought, the MWHA 2022 permits an authorised psychiatrist to make a treatment decision for a patient who does not have capacity to give informed consent or who has not given informed consent if certain requirements are met. The authorised psychiatrist can make a treatment decision for the patient if the authorised psychiatrist is satisfied that the treatment is clinically appropriate; and there is no less restrictive way for the patient to be treated other than the proposed treatment. An authorised psychiatrist cannot make a treatment decision about electroconvulsive treatment or neurosurgery for mental illness for a patient. These treatments cannot be provided without consent unless authorised by the Mental Health Tribunal. In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must consider the patient’s views and preferences (including consulting a nominated support person and an advance statement of preferences), alternative treatments, consequences if treatment is not provided, and the view of certain family members, carers and supporters. These obligations are fulfilled if reasonable attempts are made to find out the views, even if not obtained. What is reasonable in the circumstances will vary on a case-by-case basis. See below for more information on compulsory treatment orders.

Consistent with the focus on individualised treatment, including for compulsory patients, the MHWA sets out explicit obligations on public mental health and wellbeing services and psychiatrists when making decisions about mental health treatment, even when a person is already a compulsory patient (pt 3.1 MHWA).

The MHWA has introduced new rights-based decision-making principles for treatment and interventions. Decision-makers must give proper consideration to these principles when making decisions in relation to a patient’s assessment, treatment, or the use of restrictive interventions. The decision-making principles must be considered alongside the mental health and wellbeing principles. In particular the principles that:

• people’s rights, dignity and autonomy are to be promoted and protected;
• mental health and wellbeing services are to be given to consumers with the least possible restriction of a person’s rights, dignity and autonomy and with the aim of promoting their recovery and full participation in community life. There are five decision-making principles:
• Care and transition to less restrictive support Where compulsory assessment and treatment is given to a person, it must be with the aim of promoting the person’s recovery and transition to less restrictive treatment, care and support. Treating teams are obligated to provide these services to a compassionate, safe and high quality standard.
• Consequences of compulsory assessment and treatment and restrictive interventions Compulsory assessment and treatment or restrictive interventions significantly limit a person’s human rights and may cause harm and serious distress. They may also result in disruption of relationships, living arrangements, education and employment. For example, the loss of a job or housing while undergoing compulsory inpatient treatment. Consumers who have felt trauma or distress as a result of their experience of compulsory assessment or treatment or restrictive intervention may not access support services in future.
• No therapeutic benefit to restrictive interventions The use of restrictive intervention offers no inherent therapeutic benefit to the person. This does not mean that restrictive interventions can’t be used when needed to prevent imminent and serious harm or (in the case of bodily restraint) to allow for treatment or medical treatment to be administered. Decision-makers must consider that the act of restraining a person or confining them to a space alone can be traumatic for them and that their use does not of itself offer any therapeutic benefit to the person.
• Balancing of harm Compulsory assessment and treatment and restrictive interventions are not to be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use. This principle requires a balancing of the harm to be prevented against the harm to the person that is likely to result from their use.
• Autonomy A person’s will and preferences must be given effect to the greatest extent possible in all decisions about assessment, treatment, recovery and support, including where those decisions relate to compulsory assessment and treatment. This includes not only what the person is saying at the time, but also information from an advance statement of preferences, input from nominated support persons, and recorded notes.
• Proper consideration Decision-makers must give proper consideration to the decision-making principles when exercising a power or making a decision about a patient’s assessment, treatment and care. Proper consideration is the same test decision- makers will need to use when considering the mental health and wellbeing principles. Just like with those principles, what this means in practice will vary depending on the context. In circumstances where a decision is urgent, what is ‘proper consideration’ will be different to circumstances where there is more time for a decision, or where the impact of the decision may be particularly significant. The requirement to give proper consideration to the decision-making principles applies to any decision about the assessment, care or treatment of a patient. This includes, for example, decisions such as making an assessment order, making a TTO, applying to the Mental Health Tribunal for a TO to be made or authorising the use of restrictive interventions.

The Mental Health Tribunal (MHT) is a statutory body that is independent from the mental health services. Its primary role is to decide whether a person requires compulsory mental health treatment. The MHT must interpret all statutory provisions consistently with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’), so far as that is possible and consistent with its purpose.

The MHT is considered to be a public authority under the Human Rights Charter (except when acting in an administrative capacity). As a public authority, the MHT must act compatibly with Charter rights, unless it could not have acted otherwise.

The MHT conducts hearings in relation to:

• whether a patient must have compulsory treatment subject to a TO;
• revocation of TTOs or TOs
• whether electroconvulsive therapy (ECT) can be given;
• TOs for and transfer of security and forensic patients;
• applications to review a refusal to grant leave of absence to a security patient;
• the transfer of a person’s treatment interstate;
• applications against the transfer of patients to another health service;
• applications to perform neurosurgery for mental illness; and
• applications for Intensive Monitored Supervision Orders.