Mental health

10.63   All states and territories have mental health laws that regulate consent to medical treatment, including the involuntary detention and treatment of people with severe mental illness. Generally, mental health laws have provided for treatment based on a person’s need for treatment and the risk of harm posed to themselves and others.[68]

10.64   New mental health legislation in Tasmania and Victoria has changed the focus of criteria for the involuntary detention and treatment from the risk of harm to a person’s capacity to consent to treatment.[69] There are active mental health reviews and legislative initiatives in other jurisdictions.[70]

10.65   The Mental Health Coordinating Council (MHCC) submitted that the Mental Health Act 2007 (NSW) is ‘problematic’, because there is little detail about the basis of decisions made by doctors on the treatment of detained psychiatric patients, particularly those who retain decision-making capacity in relation to certain treatment decisions and who have a view about the preferred treatment or wish to forgo certain treatments.[71]

10.66   The MHCC stated that the law should outline the rights of patients to refuse and receive treatment and deal with how patients’ preferences can be taken into account in medical decisions—including by way of advance care directives—to ensure that doctors override patients’ preferences only in limited circumstances, where a patient lacks capacity to make that decision, and the proposed treatment is ‘manifestly in the person’s best interests’.[72]

10.67   New legislation in Tasmania and Victoria protects the rights of mental health patients through statements of rights. In Tasmania, the rights of involuntary patients are outlined in statute and whenever a person is admitted to, or discharged from, an approved facility, its controlling authority must give the person a statement of their rights.[73] In Victoria, a statement of rights must be explained to people being assessed or receiving treatment in relation to their mental illness.[74]

10.68   A person’s rights under the Mental Health Act 2014 (Vic) include the right to communicate, make advance statements and have a nominated person to support them and help represent their interests.[75] The role of a nominated person is to receive information about the patient; be one of the persons who must be consulted in accordance with the Act about the patient’s treatment; and assist the patient to exercise any right under the Act.[76] A person can only nominate another person in writing and the nomination must be witnessed.[77] A nomination can be revoked in the same manner by the person who made the nomination or if a nominated person declines to act in the role.[78]

10.69   A similar model for supported decision-making in mental health services is contained in the Mental Health Bill 2013 (WA) (the WA Bill).[79] Under the proposed legislation, mental health services are obliged to comply with a charter of mental health care principles. The charter recognises the involvement of other people such as family members and carers.[80] In addition, the WA Bill would give effect to the carers’ charter provided for in the Carers Recognition Act 2004 (WA).[81]

10.70   The WA Bill provides for a ‘nominated person’, someone chosen by the person with mental illness to assist them in ensuring their rights under the Act are observed and their interests and wishes are taken into account by medical practitioners and mental health workers.[82] A nominated person is entitled to ‘uncensored’ communication with the person with mental illness, and to receive information related to that person’s treatment and care.[83]

10.71   Under the WA Bill, a nominated person may exercise the rights of the person with mental illness under the legislation, but is not authorised to apply for the admission to or discharge by a mental health service.[84] Unless the provision of information is not in the best interests of the patient, a nominated person has a right to be involved in matters relating to the treatment and care of the patient, including the consideration of the options that are reasonably available for the patient and the provision of support to the patient.[85]

10.72   The ALRC recommends that state and territory governments review mental health legislation, with a view to reform that is consistent with the National Decision-Making Principles and the Commonwealth decision-making model. This might involve, for example, moving towards supported decision-making models similar to those contained in the Victorian legislation and in the WA Bill.

10.73   COAG’s Standing Council on Health has long overseen developments in mental health laws, and may be able to advance such an initiative. The AHMAC, a component committee of the Standing Council, commissioned a national project on model mental health legislation, which was completed in 1994.[86] This project propelled review of mental health laws in every state and territory in Australia in the late 1990s.[87]