1. What consumers want from new mental health laws A consumer forum by the Mental Health Legal Centre Thursday 17 February 2011 Lionel Murphy Centre © Mental Health Legal Centre Inc.

2. Session 1 - Compulsory treatment & refusing treatment What does the draft bill say about: 1.Compulsory treatment / involuntary treatment 2.Refusing treatment 3.Responsibilities on treating team – treatment planning

3. 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

4. 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 made 3.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

5. 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

6. Compulsory treatment – 5 criteria What 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 MHS 3)“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

7. Compulsory treatment – 5 criteria What 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 MHA 3)Risk – confirms how MHRB has interpreted risk in MHA; significant risk of serious deterioration is still broad 4)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 bill 5)No less restrictive alternative – essentially the same What is left out? “effectiveness” of treatment must outweigh the negative side effects (from MHRB caselaw) ??

8. 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 prescribed BUT –If refuse, could use as evidence to satisfy 4 th 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

9. Treatment – you & the treating team New responsibilities of treating team & “treatment planning” 1. Who must be notified when order made? Nominated person – someone you choose 2. 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 community 5. “Collaborative” treatment-planning with i) person, ii) nominated person & ii) carer with the consent of person 6. Second opinion after 3 months Panel of 2 nd opinion psychiatrists – must arrange (not employed by MHS) May i) confirm t’ment or ii) not confirm t’ment  auth psych review TP

10. 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 treatment 3.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

11. Session 2 – Reviews and appeals & new Mental Health Tribunal What does the draft bill say about: 1.Review officers 2.When does Mental Health Tribunal review an order? 3.How does the Mental Health Tribunal review an order? 4.Legal representation

12. 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

13. 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 weeks Draft 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)

14. 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”

15. 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

16. 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?

17. 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?”

18. 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

19. 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

20. 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

21. Nominated person Role? 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

22. 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

23. Session 4 – ECT What does the draft bill say about: 1.Who authorises ECT & the process 2.Role of the Mental Health Tribunal 3.ECT and young people 4.Emergency ECT

24. 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

25. ECT Current 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 benefit MUST consider -wishes/preferences incl adv stmt -Views of nominated person -Family / carer with consent of the person -“reasonably available” alternatives unsuccessful or ECT most appropriate Young people -13-17years – ECT may be performed provided MHT authorises it Emergency ECT – to save person’s life – no need to go to the MHT Penalties for not complying with process (previously stated “offence”)

26. 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 13-17yrs 3.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

27. Session 5 – Complaints & the Mental Health Commission What does the draft bill say about: 1.The new Mental Health Commission and its role 2.The Office of the Chief Psychiatrist 3.Enforcing compliance after complaints

28. 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

29. Complaints Draft 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 persons BUT -Not investigation of own motion POWERS incl: -Conciliate complaint -Formally investigate -Issue compliance notice OCP – more coordinated audit function

30. 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

31. More information Mental Health Legal Centre 9 th 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