Download Review of Mental Health Act

Mental Health Act 2000 (Qld)
Submission to the Queensland
Government for the review of the Mental
Health Act 2000 (Qld)
August 2013
Mental Health Act 2000 (Qld)
Submission to the Queensland Government for the review of
the Mental Health Act 2000 (Qld)
Mental Health Law Practice
Queensland Public Interest Law Clearing House
PO Box 3631
South Brisbane BC QLD 4101
Tel: 07 3846 6317
Fax: 07 3846 6311
Email: [email protected]
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Table of Contents
OVERVIEW
4
LIST OF RECOMMENDATIONS
8
JUSTICES EXAMINATION ORDERS
12
INVOLUNTARY TREATMENT ORDERS
25
REVIEW OF TREATMENT DECISIONS
29
ACCESS TO INDEPENDENT SECOND PSYCHIATRIC OPINIONS
36
ADVOCACY SERVICES
45
TREATMENT OF CHILDREN
56
COMPLAINT MANAGEMENT SYSTEMS AND GUIDELINES
69
ADVANCE HEALTH DIRECTIVES
76
MISCELLANEOUS RECOMMENDATIONS
81
GLOSSARY
85
3
Overview
Queensland Public Interest Law Clearing House’s (QPILCH) Mental Health Law Practice (MHLP)
welcomes the opportunity to make a submission for the review of the Mental Health Act 2000
(Qld).
People with mental illness are among the most disadvantaged members of our community and
often face a complex range of social, legal and economic issues which hamper their recovery.
Through our MHLP we attempt to address some of the legal needs that people with mental
illness experience by providing a range of accessible and effective civil law services. We are able
to provide this assistance by leveraging a small amount of private funding from the English
Family Foundation, through partnering arrangements with law firms, community agencies and
universities and by working with Queensland Health staff. The MHLP evolved out of our mental
health law student clinic which was established in 2009. Through that clinic, we became aware
of the serious gap in mental health legal services, particularly for patients on Involuntary
Treatment Orders (ITO) in comparison with other States.
With the official establishment of the MHLP in September 2013 we now:

coordinate pro bono civil law services throughout Queensland for people experiencing
mental illness and refer complex matters to our law firm partners for advice and
representation;

provide advice and assistance to clients throughout Queensland on issues arising under
the Mental Health Act;

provide free advocacy services for people on ITOs appearing in Mental Health Review
Tribunal (“the Tribunal”) hearings through our Tribunal Advocacy Service;

provide advice and assistance to clients through civil law outreach clinics at Open Minds
and Footprints in partnerships with DLA Piper Lawyers and Allens Lawyers;

provide advice and assistance through outreach at the Princess Alexandra Hospital
through a mental health law clinic run in conjunction with the University of Queensland;
and

provide training for mental health caseworkers to assist them to better identify legal
issues and develop appropriate referral pathways.
4
Many of the clients that we assist through our civil law clinics have made significant progress on
the path to recovery but are held back by legal issues which may have arisen because of their
illness. By providing legal assistance to clients at this stage of their recovery and by working
with community support services, we play a valuable role in assisting clients to avoid a relapse
and a return to mental health services.
Our volunteer advocates (mainly final year law students and law graduates) also provide
valuable assistance to people on ITOs, helping them to navigate the mental health system and to
participate in a meaningful way at their Tribunal hearings. Queensland has more than 11,000
Tribunal hearings each year and currently has the lowest level of representation in mental
health review tribunals in the country (less than 3 per cent compared with 98 per cent in the
Northern Territory).1
In the past 12 months through the MHLP we have:

provided legal advice and assistance to over 150 clients, primarily for issues under the
Mental Health Act;

trained 46 volunteer advocates;

trained a group of lawyers to represent clients in the Tribunal (in conjunction with QAI);

provided training to 65 mental health caseworkers; and

worked with a range of community agencies to develop innovative and cost effective
models of legal service delivery.
With the prevalence of mental illness in the community and the increasing rates of people on
ITOs, mental illness is an increasing burden on both the health and legal systems.2
Unfortunately, systems under stress pose a serious risk to the rights of people with mental
health issues.
Although the Act gives expression to important human rights principles, there is nonetheless a
significant gap between the aspirational principles and the practice on the ground. This is
sometimes the inevitable result of an over burdened mental health system but it is also the
result of cultural factors and structural issues. Our submission attempts to address both of these
Public Interest Research Clinic, Mental Health and the Law: Client Representation (Queensland Public
Interest Law Clearing House, draft report, 2011).
2 SANE Australia, Facts and Figures About Mental Illness (2013)
< http://www.sane.org/information/factsheets-podcasts/204-facts-and-figures>; Queensland
Government, Mental Health and Wellbeing (14 March 2013) <
http://www.qld.gov.au/disability/adults/mental-health-illness/>.
1
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issues by making recommendations which bridge the gap between aspirations and practice, at
least on those issues within the spheres of our experience. We do not work in the field of
forensic orders and do not have particular expertise in relation to Emergency Examination
Orders (EEOs), for example, and do not make specific recommendations on these issues except
in relation to the importance of representation in forensic orders.
While we work to ensure the rights and interests of people under the Act are protected, we are
nonetheless mindful that these rights include the right of people with mental health issues to
receive treatment and that our recommendations should not hinder access to treatment. We are
also mindful of the importance of clinical objectives and the rights and needs of the community.
Our recommendations are also informed also by the recovery framework that underlies all
Queensland and national mental health policy. A central pillar of this framework is the need for
mental health policies and procedures to be directed towards maximising the potential for
recovery by people suffering from mental illness.3 Inherent in this framework is an
understanding of the unique nature of the recovery path for each individual and the importance
of measures which assist that person to be involved and take responsibility for their decisions
and recovery path.4
Our recommendations are informed by the human rights framework that governs mental health
law and policy. This comprises various statutes and policy documents at the State, National and
international level.
Ensuring that the legislative framework gives voice to both human rights protections and the
treatment needs of people with mental illness can be difficult to achieve. But, in our view, the
apparent tension between human rights principles and treatment objectives is more illusory
than real. Human rights protections and clinical objectives are not incompatible. On the
contrary, the recognition and protection of human rights can support and enhance clinical
objectives. The right to mental health treatment and the right to fair process can and should
coexist. Legislation that clearly sets out people’s rights and obligations not only protects the
individual’s human rights but also facilitates the relationship between clinicians and their
patients.
3Department
4
of Health and Aging, Pathways of recovery: 4As framework for preventing further episodes of
mental illness (Australian Government, 2006)
<http://www.health.gov.au/internet/main/publishing.nsf/Content/56DBEBB22AA5B6BECA2573CA
00176819/$File/frameexe.pdf>.
With acknowledgement to Dr Marianne Wyder, Post Doctoral Research Fellow, University of
Queensland.
6
In this context, the low rate of representation in the Tribunal is of particular concern. We note
that this is considered a fundamental right under Principle 1(6) of the Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (“MI
Principles”) which states:
[t]he person whose capacity is at issue shall be entitled to be represented by a counsel
(defined as a legal or other qualified representative). If the person whose capacity is at
issue does not himself or herself secure such representation, it shall be made available
without payment by that person to the extent that he or she does not have sufficient
means to pay for it.5
Although the lack of representation may be primarily a funding issue, law reform is also needed
to give full effect to this right. The current Act does specifically acknowledge the importance or
entitlement to representation or advocacy for people subject to Tribunal hearings.
Representation by an advocate or lawyer is essential to ensure meaningful participation by the
person, to ensure fair process and to prevent human rights abuses. Effective advocacy and
representation far from impeding clinical objectives, can facilitate the relationship between the
person and their treating team, improve the person’s understanding of the mental health
process and ensure better information is presented to the Tribunal. A well trained advocate or
legal representative understands the importance of the relationship between the person and
their treating team and with members of their family. They work to ensure that no damage is
done to these relationships while also ensuring the person’s views and preferences are
expressed and rights are protected.
In the long run this is likely to reduce the cost burden to the mental health and legal systems
and is consistent with both the human rights and recovery framework
Other issues that can be addressed through law reform are the special concerns of children, the
malicious use of Justices Examination Orders (JEO), the lack of access to clinical files prior to
hearings and to second opinions and the lack of a formal review mechanism for treatment
decisions are also all issues of concern to us. We have made recommendations with respect to
all of these issues.
5
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care,
GA Res 46/119, UN GAOR, 75th plen mtg, UN Doc A/RES/46/119 (17 December 1991), Principle 11
(9).
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List of Recommendations
JUSTICES EXAMINATION ORDERS
1. The Act should be amended to remove the power of justices of the peace (JPs) to issue JEOs.
2. The following amendments should be made:
a) The request and recommendation process should be expanded to allow a
recommendation for assessment to be made in limited circumstances even if the person
has not been examined by a medical practitioner within the last three days. This power
would only be enlivened where all reasonable steps had been taken to comply with the
usual request and recommendation process.
b) The Director should have the power to authorise specific groups of people or individuals
(for example a mental health nurse) to make recommendations on an as-needed basis.
c)
A medical practitioner, mental health practitioner or person authorised by the Director
of Mental Health should be able to make the recommendation.
3. A higher threshold should apply when a recommendation for assessment is made by a nonmedical practitioner or the person has not been examined in the preceding three days. The
mental health practitioner, medical practitioner or authorised person must:
a) Be satisfied that if the person is not examined there is an imminent risk that the
person may cause harm to themselves or others, or suffer serious mental or physical
deterioration;
b) Consider the Director’s guidelines;
c) Ensure that the criteria for involuntary assessment would be satisfied; and
d) Document the reason on which the risk assessment is based.
4. The Director should be required to issue detailed guidelines for practitioners regarding
making recommendations for assessment.
5. The Act should be amended to provide a definition of ‘assessment’ and ‘examination’ to add
clarity.
6. Magistrates should retain the power to issue an examination order.
7. The Act should be amended to enable any person, not just adults, to access involuntary
assessment processes.
8
INVOLUNTARY TREATMENT ORDERS
8. The authorised doctor should only have the power to make a 28-day Involuntary Treatment
Order (ITO) after assessment.
9. The Tribunal should have the power to make ITOs after the initial ITO.
REVIEW OF TREATMENT DECISIONS
10. Treating psychiatrists should be required to consider the person’s preferences when making
treatment decisions.
11. If requested, treating psychiatrists should be required to record the patient’s treatment
preferences on the treatment plan.
12. Treating psychiatrists should be required to submit the patient’s treatment plan to the
Tribunal at each review hearing.
13. The Tribunal should have the power to order that a treatment plan be reviewed.
ACCESS TO INDEPENDENT SECOND PSYCHIATRIC OPINIONS
14. An independent second psychiatric opinion should be required under the Act before the
first Tribunal hearing. If the ITO continues, an independent second psychiatric opinion
should be required after six months, after 12 months and every two years thereafter.
15. The Act should define what constitutes a second opinion. A second opinion should require
an in-person psychiatric assessment where practicable and an assessment via videolink in
other circumstances.
16. At a minimum, a person on an ITO should be entitled to an independent second psychiatrist
opinion if they request one.
17. The Tribunal should be required to consider conflicting psychiatric opinions.
ADVOCACY SERVICES
18. Every person on an involuntary treatment order should be entitled to an advocate or legal
representative in Tribunal hearings.
19. The role of advocates should be explicitly recognised in the Act.
20. Advocates should have the right to appear before the Tribunal.
21. An advocate should be appointed to people under ITOs who do not have the capacity to
appoint an allied person.
9
22. A legal representative should be appointed to people subject to ECT or psychosurgery
applications.
23. The Tribunal should be empowered to provide basic contact information for all clients with
scheduled hearings before the Tribunal to approved advocacy and legal services.
TREATMENT OF CHILDREN
24. ‘Child’ should be defined as persons less than 18 years of age and used consistently
throughout the Act.
25. The presumption of capacity regarding children should be clearly stated.
26. Where the child does not have capacity, the child’s parent or guardian should be able to
make decisions about the child’s assessment, treatment and choice of an allied person.
27. Children on an ITO under the Act should be provided with an independent advocate or legal
representative.
28. Children on a Forensic Order under the Act should be provided with an independent legal
representative.
29. The Tribunal should be required to conduct a hearing for child patients under an ITO within
7 days after the order is made and afterwards at intervals of not more than three months.
30. ECT should only be used on children where it is in the child’s best interests and where a
second opinion from a Child Psychiatrist has approved the treatment.
31. Psychosurgery should only be used on children where it is in the child’s best interests and
where a second opinion from a Child Psychiatrist has approved the treatment.
32. The Act should be amended to provide that the following principles apply specifically to the
assessment and treatment of children:
a. the best interests of the child are the primary consideration;
b. the views of the child are to be considered;
c. the views of the parents or guardian of the child are to be considered;
d. children should be treated by a Child Psychiatrist where this is reasonably
practicable; and
e. children being treated as in-patients should be treated in a separate facility to adult
patients where this is reasonably practicable.
COMPLAINT MANAGEMENT SYSTEMS AND GUIDELINES
33. An independent specialist mental health complaints body should be established under the
Act with broad powers to perform its statutory functions.
10
34. The Act should require the Director to publish detailed guidelines.
35. The Director should be responsible for monitoring compliance with the guidelines. The
Tribunal should have the power to consider whether the guidelines have been complied
with.
ADVANCE HEALTH DIRECTIVES
36. Where an advance health directive is lawfully made, treatment must be given in accordance
with the advance directive except:
a. in an emergency;
b. where compliance with the directive is likely to result in the person causing serious
harm to themselves or another person; or
c. where there have been advances in medical science to the extent that the person, if
they had known of the change in circumstances, would have considered the terms of
the direction inappropriate.
37. Where an advance health directive is not complied with, the treatment must be justified,
proportionate and in the person’s best interests.
38. Where an advance health directive is not complied with, the person must be given written
reasons for the decision.
MISCELLANEOUS
39. The Act should be amended to require the patient’s clinical report to be given to the patient
at least seven days before a Tribunal hearing.
40. The Act should stipulate that people subject to ITOs have the right to access their medical
records prior to a Tribunal hearing.
41. The Director should be required to publish detailed guidelines on the assessment of risk.
11
Justices Examination Orders
Recommendations:
1. The Act should be amended to remove the power of justices of the peace (JPs) to issue
JEOs.
2. The following amendments should be made:
a) The request and recommendation process should be expanded to allow a
recommendation for assessment to be made in limited circumstances even if the
person has not been examined by a medical practitioner within the last three
days. This power would only be enlivened where all reasonable steps had been
taken to comply with the usual request and recommendation process.
b) The Director should have the power to authorise specific groups of people or
individuals (for example a mental health nurse) to make recommendations on an
as-needed basis.
c) A medical practitioner, mental health practitioner or person authorised by the
Director should be able to make the recommendation.
3. A higher threshold should apply when a recommendation for assessment is made by a
non-medical practitioner or the person has not been examined in the preceding three
days. The mental health practitioner, medical practitioner or authorised person
must:
a) Be satisfied that if the person is not examined there is an imminent risk that the
person may cause harm to themselves or others, or suffer serious mental or
physical deterioration;
b) Consider the Director’s guidelines;
c) Ensure that the criteria for involuntary assessment would be satisfied; and
d) Document the reason on which the risk assessment is based.
4. The Director should be required to issue detailed guidelines for practitioners
regarding making recommendations for assessment.
5. The Act should be amended to provide a definition of ‘assessment’ and ‘examination’
to add clarity.
6. Magistrates should retain the power to issue an examination order.
7. The Act should be amended to enable any person, not just adults, to access involuntary
assessment processes.
12
Under the Act, a JP or magistrate can issue a JEO to authorise a doctor or authorised mental
health practitioner to examine a person involuntarily. This process is intended to provide a
means to have a person medically examined where the more usual process of request and
recommendation6 cannot be followed because the person has not been examined by a doctor
within the preceding three days. The JEO is made with a view to determining whether a
recommendation for assessment should be made leading to involuntary treatment. A JEO should
only be made in non-urgent matters. A separate process, the EEO applies in urgent matters and
can be made by a police officer or ambulance officer.
A JEO permits the entry into a place and detention and assessment of a person for the purposes
of conducting an examination.7 The person can be escorted to a mental health service and
detained for up to 72 hours in a psychiatric unit for assessment.8 An authorised doctor or
mental health practitioner can also get help from the police to enforce the order if necessary.
Although a JEO can be authorised by either a JP or a magistrate, in practice JEOs are issued
almost exclusively by JPs. In 2011/12, almost 98 per cent of JEOs were initiated by JPs.9 Any
person can initiate a JEO by written application asserting only that they believe the person
needs to be examined and the reasons why they believe the person has a mental illness.10
Queensland is the only state or territory that permits a JP to order an involuntary mental health
examination of a person. While there is no uniformity among states and territories in the
examination and assessment process, most jurisdictions rely to a greater extent on mental
health practitioners or medical practitioners to determine whether a person should be
involuntarily examined, detained and treated. Some jurisdictions provide an additional or
The request and recommendation process is contained in Mental Health Act 2000 (Qld) chap 2, pt 1. A
person can be assessed provided two forms are completed. The first, the Request for Assessment, is
completed by an adult who reasonably believes the person has a mental illness of a nature or to an
extent that involuntary assessment is necessary. The person must have observed the person within
three days before making the request. The second form, a Recommendation for Assessment, is
completed by a doctor or authorised mental health practitioner who has examined the person within
the preceding three days.
7 Mental Health Act 2000 (Qld) s 30.
8 Ibid s 47.
9 Queensland Health, Annual Report of the Director of Mental Health 2011/2012, 8. Anecdotally, we
understand that many JEOs are issued by JPs in courthouses who presumably may provide a greater
level of scrutiny than other JPs. Unfortunately, we have been unable to ascertain the number of JEOs
issued by JPs in courthouses compared to JPs elsewhere, but even if the majority of JEOs are currently
issued by JPs in courthouses, the current system still lacks appropriate safeguards and is open to
abuse.
10 For information about Justices Examination Orders see Queensland Health, Information about Justices
Examination Orders (Queensland Government. 17 May 2013) 3
<http://www.health.qld.gov.au/mha2000/documents/jeo_brochure.pdf> .
6
13
exclusive mechanism for a person to apply to a magistrate (New South Wales) or a civil and
administrative tribunal (Australian Capital Territory) for an examination order.
11
Western
Australia and South Australia provide no additional avenue for a member of the community to
apply for an examination order.12
In practice, most ITOs are not made as a result of JEOs but as a result of EEOs and the request
and recommendation process under the Act. However, it is our view that there are significant
flaws with the JEO process and it requires major reform.
In our view, the changes we have proposed will:

facilitate access to mental health services for those in need;

minimise opportunities for vexatious or malicious assessment applications;

facilitate examination, assessment and treatment of the patient by consent to the
greatest extent possible;

be minimally intrusive to the rights of people in the community and should not lead to
unnecessary or inappropriate assessments and detention;

involve mental health professionals to a greater extent in the determination of the need
for examination and assessment; and

be accessible to people throughout Queensland.
Recommendation 1 - The Act should be amended to remove the power of JPs to issue
JEOs.
There can be many reasons why a person with mental illness does not voluntarily seek mental
health assistance, among these, the symptoms of mental illness itself. For this reason, every
jurisdiction makes some provision for involuntary examinations in both urgent and non-urgent
matters.
The policy rationale for the JEO process may have been to provide a mechanism for examination
when assessment documents cannot be completed and perhaps to improve accessibility to
mental health services. However, in practice, JEOs have not greatly improved access to services
and have led to unnecessary and intrusive examinations for a significant number of people.
11
12
Mental Health Act 2007 (NSW) s 24; Mental Health (Treatment and Care) Act 1994 (ACT) s 11.
See Mental Health Act 1996 (WA) pt 3 and Mental Health Act 2009 (SA) pt 4.
14
Unnecessary examinations
According to the Director of Mental Health’s (“the Director”) Annual Report, 7508 involuntary
assessments were conducted in the 2011-2012 financial year through the request and
recommendation process.13 Of these assessments, ITOs were subsequently made in 61 per cent
of cases.14 These figures do not include assessments that occurred through the JEO process.
Over the same period, 990 JEOs were made and examinations conducted.
15
Only 30 per cent
(300 people) of these resulted in a recommendation for assessment.16 ITOs resulted in only 25
per cent of JEO applications (248 people).17
These figures indicate:

A significant proportion of people who are subject to JEOs are not considered by medical
professionals to require involuntary assessment. Even fewer people who are subject to
JEOs are considered by medical professionals to require involuntary treatment. This
means the JEO process is frequently used against people who medical professionals do
not believe require psychiatric assessment.

When the request and recommendation process is used, rather than the JEO process, far
more people who are subject to involuntary examination are subsequently found to
require involuntary treatment. This shows the importance of having a person with
mental health expertise who can exercise clinical judgment in the involuntary
examination process.
These statistics mean that many people undergo the distressing experience of the JEO process
unnecessarily.
JPs are not an appropriate authority to authorise involuntary examinations
It is our view that JPs are not the appropriate authority to authorise the involuntary
examination of a person. This is because:

JPs have no specialist knowledge of mental illness and are therefore ill equipped to
assess the need for involuntary examination.
Above n 9, 7.
Ibid.
15 Ibid 9.
16 Ibid.
17 Ibid.
13
14
15

JPs are not required to consult with a mental health practitioner to determine whether
the behavior described in an application for a JEO is consistent with a mental illness.

There is a low threshold of evidence on which a JEO can be issued. A magistrate or JP is
required only to ‘reasonably believe’ that the person who is the subject of the
application has a mental illness and that an examination of the person is necessary.18

JPs have limited training in JEOs (less than two hours),19 are not legally trained and have
no specific skills in assessing evidence or interrogating applicants.
As a result, it is relatively easy to get a JEO and, in our experience, vexatious and malicious JEOs
are not uncommon.
Vexatious and malicious JEOs
The MHLP regularly receives requests for assistance from people who have been the subject of
apparently malicious JEO applications. Such applications are made in the context of family
conflict, divorce and even neighbour disputes.
Generally, the first that a person knows of a JEO is when the mental health worker, and
sometimes police, appears at their door to enforce the order. Unsurprisingly, people sometimes
react with shock and anger and may be uncooperative. Many report that their reaction is then
‘used against them’ as evidence of mental illness. While some people are examined and assessed
at their homes, others are taken from their homes and escorted by police to a local hospital for
assessment.
Although the result is commonly that the person is assessed not to have a mental illness or
require involuntary treatment, the process can nonetheless be distressing. The assessment
process may take some time: people can be detained in hospital for up to 72 hours.20 It can be
disruptive and people may feel that they have to ‘prove’ that that they do not have a mental
illness. Those subject to a JEO generally do not find out who initiated the order, though they may
have their suspicions, and in practice there is no recourse for malicious applications.21 Further,
the person may be given little information about the reasons for the order or the process for the
assessment. Some clients then become concerned that the incident is, or will be, recorded on
Mental Health Act 2000 (Qld) s 28.
As advised by a recent participant in the JP training.
20 Mental Health Act 2000 (Qld) s 47(2).
21 Ibid, s 522(1) provides that it is an offence for a person to ‘state anything in a document required or
permitted to be made under this Act [that] the person knows is false or misleading in a material
particular’. Although it is an offence to make untrue statements we understand that there has not been
a single prosecution for an offence against this provision.
18
19
16
their health records, particularly if the assessment took place at a hospital. Some clients report
reluctance to seek medical assistance from that hospital in the future because of the record or
because of the way they were treated at the hospital.
Case example 1
The MHLP was contacted by a 35 year old man, J, who was examined and assessed following a
JEO. His father initiated the JEO after J had a verbal altercation with his step-mother. J says that
he informed his father he wanted nothing more to do with him or his step-mother. Two days
later, police attended J’s residence and took him to the closest mental health service for
examination. J was shocked and upset at being detained in a mental health unit. A
recommendation for assessment was made, which he says was in response to his anger at being
held in a mental health unit. He reports that the whole experience was very traumatic.
J was placed on a community ITO and the MHLP assisted J at his first Tribunal hearing. The
Tribunal revoked the ITO and accepted that the ITO was made in the context of a family dispute
and that the treatment criteria under section 14 of the Act were not satisfied.
Case example 2
The MHLP assisted M, a 69 year old woman who was subject to a JEO. She believes that the JEO
was taken out by her ex-partner with whom she was in conflict. M was taken unexpectedly from
her home by mental health workers and detained for a few days in hospital. Although initially
told she did not require mental health treatment, she was kept overnight in hospital for
‘observation’. She then became distressed about her pets and her house as she was not able to
make arrangements prior to being taken to hospital. She tells us she was then diagnosed with
‘histrionic personality disorder’, placed on an ITO and given anti-psychotic medication which
she told us she did not take. The ITO was revoked a few days later and prior to a review by the
Tribunal. M felt traumatised by the experience and did not want to make a complaint about
what had happened in case she was placed back under an order. She now worries that if she
‘causes any trouble’ she will be abruptly taken from her home again.
Case example 3
L was the subject of a JEO in the context of a neighbor dispute in a regional area. A JEO was
issued by a JP in Brisbane. According to L’s friends and other neighbours, the JEO was sought in
17
Brisbane because the applicant would not have been able to convince a local JP, who knew L,
that he was suffering from a mental illness and needed to be assessed.
Recommendation 2 – The following amendments should be made:
a) The request and recommendation process should be expanded to allow a
recommendation for assessment to be made in limited circumstances even if the
person has not been examined by a medical practitioner within the last three days.
This power would only be enlivened where all reasonable steps had been taken to
comply with the usual request and recommendation process.
b) The Director should have the power to authorise specific groups of people or
individuals (for example a mental health nurse) to make recommendations on an asneeded basis.
c) A medical practitioner, mental health practitioner or person authorised by the
Director should be able to make the recommendation.
As noted above, the request and recommendation process is the most common process for
involuntary examinations in non-urgent situations. In our view, this is the most appropriate
process and members of the community should be encouraged to work with medical
practitioners and mental health practitioners to the greatest extent possible to ensure
involuntary examination where needed.
Under the current request and recommendation process (which we recommend should be
retained), only medical practitioners who have examined the person within the preceding
three days are able to make a recommendation for assessment. While these requirements are
important safeguards, they can be significant hurdles to getting a person examined and treated.
This is because it is not always possible to have a person examined by a medical practitioner
within the required timeframe. This could be a result of circumstances in which:

No doctors are available (for example, the person lives in a regional or remote area); or

The person refuses to see a doctor.
It is our view that the Act should ensure that the involuntary assessment process is still able to
be enlivened in these circumstances. It is our view that the best way to achieve this is to amend
the Act to allow the medical practitioner requirement and the three day requirement to be
dispensed with in certain limited circumstances.
18
Specifically, the Act should permit a recommendation for assessment to be made in these
circumstances and expand the category of persons able to make the recommendation for
assessment to include authorised mental health practitioners and any other person authorised
by the Director.
To this end, the Act should empower the Director to authorise particular individuals to make
recommendations. For example, if there is no doctor or authorised mental health practitioners
in a remote area, the Director may authorise a local mental health nurse to make
recommendations for assessment.
This would only come into effect where it has not been possible to have the person examined by
a doctor in the preceding three days despite the best efforts of the applicant.
In effect, this is what happens in a number of other States and territories. For example, Victoria
has a similar request and recommendation process but permits mental health practitioners to
authorise a person to be taken to a mental health service for examination where a
recommendation has not been made if: the recommendation was not obtained because a
medical practitioner was not available; all reasonable steps to obtain the recommendation have
been taken; and the mental health practitioner considers it necessary.
To summarise, if it is not possible to have a person examined by a medical practitioner within
the three day limit, people wanting to initiate an involuntary assessment will be able to make a
request for assessment to a broader range of people: mental health practitioners and any other
persons authorised by the Director.
Because the safeguards of the medical practitioner requirement and the three day requirement
will not apply in these cases, it is our view that additional procedural safeguards should apply in
these circumstances. These safeguards are outlined below.
Recommendation 3 - A higher threshold should apply when a recommendation for
assessment is made by a non-medical practitioner or the person has not been examined
in the preceding three days. The mental health practitioner, medical practitioner or
authorised person must:
a) be satisfied that if the person is not examined there is an imminent risk that the
person may cause harm to themselves or others or suffer serious mental or physical
deterioration;
19
b) consider the Director’s guidelines;
c) ensure that the criteria for involuntary assessment would be satisfied; and
d) document the reason on which the risk assessment is based.
We are aware of the high proportion of people who suffer mental illness in our community.
Most people with mental illness never come to the attention of mental health services either
because they voluntarily seek assistance, their illness is not sufficiently serious to warrant state
intrusion or because their illness is serious but the person lacks capacity or insight into their
illness and so does not seek treatment. It is only the last category of people who should be
subject to an involuntary examination.
Because of the intrusive nature of an involuntary mental health examination, we recommend
that the perceived risk on which an involuntary examination is made (where no voluntary
examination has been possible) should be higher than the risk and recommendation process.
Accordingly, we recommend that the medical practitioner, mental health practitioner or
authorised person must be satisfied that the involuntary examination is necessary because the
person presents an imminent risk that the person may cause harm to themselves or others or
suffer serious mental or physical deterioration and that the criteria for involuntary treatment is
likely to be satisfied.
The person making the recommendation will necessarily rely on second hand reports from the
person making the request to make this assessment but will use their clinical expertise to assess
whether the behaviours described are consistent with mental illness and the likely trajectory of
the illness and the imminence of the risk. We further recommend that the clinician be required
to consider the Director’s guidelines and be required to document their reasons for
recommending the assessment.
Recommendation 4 - The Director should be required to issue detailed guidelines for
practitioners regarding making recommendations for assessment.
Although we anticipate that vexatious and malicious applicants will generally be more reluctant
to deal with clinicians than a JP, it is nonetheless possible that vexatious and malicious requests
for assessment will be made. To ensure that people are not subject to unnecessary or
inappropriate mental health assessments, we recommend that the Director be required to issue
20
detailed guidelines for clinicians making mental health assessments to determine whether a
mental health examination is necessary.
It is important that clinicians be given the appropriate tools for exploring not only the clinical
issues but the underlying motivations of the person applying for the examination. The
Director’s guidelines should therefore include the types of questions that should be asked of the
applicant, particularly when the clinician has not examined the person for whom they are
making a recommendation for assessment.
Recommendation 5 - The Act should be amended to provide a definition of ‘assessment’
and ‘examination’ to add clarity.
Currently, the Act does not provide definitions of the terms ‘assessment’ or ‘examination’.22
While the terms are not used inconsistently in the Act per se, the terms have common meanings
attached to them and are sometimes used interchangeably which can create confusion. In our
view, it would add clarity if a definition of each term were added.
Recommendation 6 - Magistrates should retain the power to issue an examination order.
Only a small number of applications for JEOs are currently made to magistrates and any change
to the Act should not result in an increased number of applications to magistrates. It is more
costly and time consuming for applications to be made to a magistrate and the decision about
whether a person needs a mental health examination is essentially a clinical decision.
Nonetheless, it may be important to retain the power for magistrates to issue such an order,
particularly where a person has not been able to get assistance from a mental health worker, a
doctor or an authorised person.
The term justices examination order should be repealed and the term examination order used
in its place where authorised by a magistrate.
Recommendation 7- The Act should be amended to enable any person, not just adults, to
access involuntary assessment processes.
22
‘Assessment’ is a defined term in the schedule to the Act, but it is only defined by reference to other
sections of the Act. Examination is not a defined term.
21
As a result of the confidentiality provisions in the Right to Information Act 2009 (Qld),23 it is
generally not possible to find out who made an application for a JEO or to obtain a copy of the
application.24 As a result, there are no available statistics about the people who make JEO
applications and why.
Although most vexatious JEOs are likely to have been initiated by family members or spouses in
the context of family disputes, we are also aware of JEOs being made in the context of neighbour
disputes.
On the other hand, we assume that the majority of well founded JEO applications have also been
made by family members or concerned friends or neighbours.
Some other states and territories restrict who can initiate the process for involuntary
assessment. For example, in New South Wales, only a primary carer, relative or friend can
initiate the assessment process.25 In the Northern Territory, any person with a ‘genuine interest
or real and immediate concern’ can make a request.26 In South Australia, there is no legislative
mechanism for community members to apply for any type of examination order but any person
can alert the mental health service.27 On the other hand, in Western Australia,28 Victoria, and
the Australian Capital Territory, ‘any person’ can initiate the involuntary examination of a
person.
Currently, the Act allows ‘any adult’29 who reasonably believes the person has a mental illness,
of a nature or to an extent, that involuntary assessment is necessary and has observed the
person within the previous three days to make a request for assessment.30 The restriction to
adults does not apply to JEOs: the Act provides that ‘a person’ can apply.31
In relation to our proposed scheme for involuntary examination, there appears to be no
compelling policy reason for restricting who can apply for assessment or examination orders
provided there are other safeguards to prevent malicious or vexatious applications. In our view,
Right to Information Act 2009 (Qld) ss 47-49, sch 3, sch 4.
Office of the Information Commission, Justices Examination Order documents – a guide for applications
(Queensland Government, 22 February 2013) <http://www.oic.qld.gov.au/guidelines/forcommunity-members/information-sheets-access-and-amendment/justice-examination-orderdocuments-a-guide-for-applicants>.
25 Mental Health Act 2007 (NSW) ss 19, 26.
26 Mental Health and Related Services Act (NT) s 32.
27 Mental Health Act 2009 (SA).
28 Mental Health Act 1996 (WA).
29 Mental Health Act 2000 (Qld) s 17.
30 Ibid s 17
31 Ibid s 27(1).
23
24
22
the relevant provision should be amended to say ‘any person’, rather than ‘any adult’, to enable
children of mentally ill adults to make a request for assessment or apply for an examination
order.
Other States
Clinical knowledge and mental health policy at the state, national and international level
continues to evolve and as a result many states and territories have recently reviewed their
respective mental health legislation.
Although there is no uniformity among states in the involuntary examination processes there
are some common elements: a greater involvement of clinicians, safeguards and a right of access
to treatment.
We have attempted to summarise the complex range of legislative mechanisms for involuntary
assessment and examination below:

The Mental Health Act 2007 (NSW) provides that a primary carer, relative or friend can
initiate the assessment by written request to an authorised mental health practitioner or
accredited person. They can also make an application to a Magistrate or authorised
person (bail officer) for an examination order.

The Mental Health (Treatment and Care) Act 1994 (ACT) provides that any person can
apply to the ACT Civil and Administrative Tribunal (ACAT) for a mental health order.
The ACAT must hold an inquiry into the matter before making an order.

The Mental Health Act 2009 (SA) empowers ‘authorised officers’, police and medical
practitioners to assess or transport a person to a mental health service for assessment.
An authorised officer, for example, can use reasonable force to take a person who
appears to have a mental illness to a person or place for examination. A medical
practitioner can assess or transport a person for assessment. Presumably a member of
the public can initiate the process by contacting the relevant mental health service or
medical practitioner.

The Mental Health Act 1996 (WA) authorises any doctor, psychiatrist or authorised
mental health practitioner to make a ‘referral’ of a person to a mental health service for
assessment. The referrer must have examined the person within the previous 48 hours.
The referrer can also issue a ‘transport order’ to enable the person to be detained and
23
transported to a mental health service. There does not appear to be any mechanism for a
member of the community to apply to a Tribunal or magistrate for an examination
order.

The Mental Health Act 1986 (Vic) provides that any person over 18 can initiate the
request and recommendation process. Where a recommendation from a registered
medical practitioner is not feasible, a mental health practitioner can issue an ‘authority
to transport’ a person for the purpose of examination if he or she is satisfied that the
criteria apply. The only other mechanism for involuntary assessment is for a member of
the police or ‘any other person’ who has reasonable grounds for believing a person with
mental illness is incapable of caring for themselves to apply to the magistrate for an
examination order.

The Mental Health Act 1996 (Tas) currently provides that an ‘authorised officer’ or
“person responsible” (that is, spouse, parent or guardian) can apply to a medical
practitioner for an initial order for involuntary admission to an approved hospital for
assessment.32 However, section 23 of the Mental Health Bill 2012 (Tas) (‘the Tasmanian
Bill’) appears to change the category of persons who can apply to a medical practioner
for an assessment order. The Tasmanian Bill does not refer to an authorised officer, but
does refer to a guardian, parent or support person and a person prescribed by the
regulations.33 We have not viewed a copy of the regulations so it is possible that the
regulations will refer to an ‘authorised officer’.

The Mental Health and Related Services Act 1998 (NT) provides that person with a
‘genuine interest or real and immediate concern’ can make a request to a medical
practitioner, authorised mental health practitioner or designated mental health worker
that a person be examined. The medical practitioner, authorised mental health
practitioner or designated mental health worker must assess the person unless not
satisfied the person is in need of treatment. The doctor or mental health worker must
recommend an examination if the person satisfies the criteria for involuntary admission.
32
33
Mental Health Act 1996 (Tas) s 25.
Mental Health Bill 2012 (Tas) ss 23(1)(e), 23(1)(g).
24
Involuntary Treatment Orders
Recommendations:
8. The authorised doctor should only have the power to make a 28-day Involuntary
Treatment Order (ITO) after assessment.
9. The Tribunal should be empowered to make ITOs after the initial ITO.
Under the Act, an authorised doctor may make an ITO if they have assessed the person and are
satisfied that the treatment criteria apply to the person.34 The ITO will continue to operate until
it is revoked by an authorised doctor or by the Tribunal.35
The decision to make an ITO has serious and ongoing ramifications for the person involved and
their family. A person under an ITO is deprived of their personal autonomy, their right to
freedom of movement36 and their right not to be subjected to treatment without their consent.37
Our primary concern with the current system for making ITOs is that health professionals are
required to make a decision that affects a person’s liberty under a complex legal framework
without the benefit of legal expertise. When making an ITO, the authorised doctor must comply
with sections 108 and 109 of the Act38 and take into consideration nine principles for the
administration of the Act39 as well as policy directions. This is particularly serious as the ITO
remains in force indefinitely. Even though the Tribunal can revoke an incorrectly made ITO, it
can be up to six weeks before a person on an ITO receives a hearing.
Further, the current system for making ITOs can cause harm to the relationship between the
treating team and the person on the ITO. In our experience, people under ITOs often feel
aggrieved by their psychiatrist’s decision to treat them against their will and feel that they are in
constant conflict with their treating team. If a person under an ITO does not trust their treating
team, the relationship cannot be therapeutic or holistic making it difficult for the person to
recover and reintegrate into the community.
Mental Health Act 2000 (Qld) s 108.
Ibid s 118.
36 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc
A/810 (10 December 1948) art 13.
37 CRPD, Un Doc A/RES/61/106 art 25(d).
38 These sections regulate the making of an ITO and deciding the category of the order.
39 Mental Health Act 2000 (Qld) s 8.
34
35
25
Additionally, under the current system psychiatrists may feel that the purpose of Tribunal
hearings is to scrutinise their professional decision to make an ITO. At times, health
professionals have occasionally exhibited hostile behaviour towards the person, their allied
person or their advocate when the person has chosen to attend their hearing. This may be a
result of psychiatrists believing that they had to prove that their decision to make an ITO was
correct according to the Act.
We consider that these are significant and unwanted results of flaws in the current Act and
therefore make the following recommendations for legislative reform.
Recommendation 8 – The authorised doctor should only be able to make a 28-day ITO.
We acknowledge that it is necessary for authorised doctors to be able to make an initial ITO in
order to ensure that people who meet the treatment criteria under the Act receive treatment.
However, authorised doctors should only have the power to make an initial, short-term ITO
(“Initial ITO”) of 28 days only. The Tribunal should then be responsible for deciding whether an
indefinite ITO should be made (see recommendation 2).
This change will allow the treating team and the person on the ITO to engage in a
“…collaborative treatment relationship consistent with recovery-oriented practice.”40 This will
enable the person and treating team to focus on rehabilitative treatment and not the order itself.
Similarly, this reform will allow the treating team to focus on presenting medical evidence to the
Tribunal and not feel that their decision to place the person under an ITO is under scrutiny or
that their professional judgment is under question.
Recommendation 9 – the Tribunal should be empowered to make ITOs after the initial
ITO.
We recommend that the Tribunal be responsible for making ITOs after an authorised doctor has
made an initial ITO. This is because the evidence before the Tribunal will cover a broader range
of medical, social and legal issues than health professionals are able to consider. We agree with
the Victorian Department of Health’s statement that:
40
Victorian Department of Health, A New Mental Health Act for Victoria, Summary of proposed reforms
(Victorian Government, October 2012), 7
<http://www.health.vic.gov.au/mentalhealth/mhactreform/mhreform.pdf>.
26
As an independent body, the Tribunal is best placed to make the decision that a person requires
compulsory treatment… In coming to this decision, the Tribunal will take a holistic approach that
considers a range of factors.41
Not only is the Tribunal independent and impartial, but it also has the benefit of both legal and
medical expertise. This recommendation is consistent with the trend in other Australian
jurisdictions towards a system where the relevant tribunal or board is responsible for making
ITOs rather than health professionals.
In South Australia, a level 3 treatment order, which operates for a maximum of 12 months, can
only be made by the Guardianship Board.42 In the Northern Territory, the Tribunal conducts a
hearing within seven days of a person being admitted for involuntary treatment and decides
whether or not to make an ITO.43 In New South Wales, an initial Involuntary Patient order is
made by a magistrate. This order operates for up to 3 months44 and a further order can be made
by the Tribunal upon application.45 In Tasmania, the Tribunal will be responsible for making
treatment orders once the Mental Health Bill 2012 comes into effect in 2014.46
In Victoria, the new legislative framework will allow a psychiatrist to make a 28-day treatment
order after assessment. Within this time the Tribunal will make an ITO for the person if they
determine that the treatment criteria apply.47 We recommend that the proposed reform for the
Victorian legislation be adopted in Queensland. Specifically, we recommend:

After assessment, an authorised doctor may make an Initial ITO if the treatment criteria
apply.

The Tribunal will conduct a hearing within the initial 28 days and make an indefinite ITO if
they determine that the treatment criteria apply. If the Tribunal makes an ITO they will
determine which category of order is most appropriate for the person.

If the Tribunal does not conduct a hearing within 28 days, the Initial ITO will expire.

During the operation of the ITO, the treating team will be responsible for making treatment
decisions.
Above n 40.
Office of the Public Advocate, Detention and Treatment Order (April 2011)
<http://www.opa.sa.gov.au/documents/10_Fact_Sheets/12-Detention_and_Treatment_Orders.pdf>.
43 Department of the Attorney-General and Justice, Involuntary Admission (Northern Territory
Government, 25 October 2012).
44 Mental Health Act 2007 (NSW) s 35.
45 Ibid s 37.
46 Mental Health Bill 2012 (Tas) s 36.
47 Above n 40.
41
42
27

The authorised doctor be required to change the category of the ITO to a less restrictive
option when necessary and revoke the order if the treatment criteria no longer apply
Proposed system for making ITOs in Queensland
28
Review of Treatment Decisions
Recommendations:
10. Treating psychiatrists should be required to consider the patient’s preferences when
making treatment decisions.
11. If requested, treating psychiatrists should be required to record the patient’s
treatment preferences on the treatment plan.
12. Treating psychiatrists should be required to submit the patient’s treatment plan to
the Tribunal at each review hearing.
13. The Tribunal should have the power to order that a treatment plan be reviewed.
In our experience, people under ITOs are often more concerned with the treatment they are
receiving than with the ITO itself. Many people accept their diagnosis and the need for the ITO
but nonetheless feel very unhappy with the medication they are receiving, the dosage or the
way it is administered. Our clients often feel a sense of powerlessness about treatment decisions
and do not feel that their preferences are given sufficient weight.
Individuals can have vastly different responses to particular medications and the treatment
journey can be long and arduous for many patients, with trial and error of different medication
regimes before finding the “right” medication. Patients can often give a rational and coherent
account of their treatment history to the treatment decisions. Unfortunately, however, our
clients report that their accounts of responses to particular medication are not always believed
or taken into account. It is understandable that a person may prefer one medication over others
that have side effects such as weight gain, over-sedation, drooling, or hyper-photosensitivity.
Unfortunately, many of our clients feel that they are not involved in treatment decisions and are
frustrated that there is no mechanism for review of these decisions
For example, one of our clients, R., was an inpatient on an ITO. He sought our assistance to
represent him at his Tribunal hearing but his main concern was the treatment he was receiving.
The initial treating psychiatrist prescribed respiridone against the wishes of the client and his
parents. The client had an eating disorder but was recovering well, had put on weight and
accepted the need for treatment. He and his family, however, asked the initial treating doctor to
delay treatment with respiridone for a short period to see how he improved without it but this
request was refused. He was receiving other treatment at the time. During the period that R
29
was on an ITO, he had a number of different treating psychiatrists. While the first doctor was on
leave, another psychiatrist had responsibility for R’s care and agreed after consultation with R
and his family to take R off the respiridone. Unfortunately, when the first doctor returned a
couple of weeks later she immediately placed R back on respiridone. R and his family were
appalled that whichever treating doctor had responsibility for R’s care had absolute power over
the treatment and that the there was no mechanism to review a treatment decision.
Meaningful participation in treatment decisions is a central tenet in recovery from
mental illness.
This is reflected in international, national and state instruments.
At the international level there are four relevant principles from the MI Principles:
1.
Where any treatment is authorized without the patient’s informed consent, every effort
shall nevertheless be made to inform the patient about the nature of the treatment and
any possible alternatives and to involve the patient as far as practicable in the
development of the treatment plan.48
2.
The treatment and care of every patient shall be based on an individually prescribed
plan, discussed with the patient, reviewed regularly, revised as necessary and provided
by qualified professional staff.49
3.
The treatment of every patient shall be directed towards preserving and enhancing
personal autonomy.50
4.
The patient, their representative or any interested person, shall have the right to appeal
to a judicial or other independent authority concerning any treatment given to him or
her.51
At the national level:

The National Standards for Mental Health Services (“the Standards”) states that the
mental health service is to uphold the right of the consumer to be involved in all aspects
of their treatment, care and recovery planning.52
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care, GA Res 46/119, UN GAOR, 75th plen mtg, UN Doc A/RES/46/119 (17 December 1991), principle
11 (9).
49 Ibid principle 9 (2).
50 Ibid principle 9 (4).
51 Ibid principle 11 (16).
52 Department of Health and Aging, National Standards for Mental Health Services (Australian
Government, 2010), criterion 1.10
48
30

The Australian Charter of Healthcare Rights states that patients have a right to be
included in decisions and choices about care.53
At the state level:

The Queensland Plan for Mental Health 2007 – 2017 states that the purpose of the plan is
to build stronger partnerships with consumers, families, carers and government and
non-government services to achieve better outcomes for people with a mental illness.54
A central principle of the plan is to ensure that the mental health system will
support active participation of consumers in service planning and delivery.55

The Consumer, Carer and Family Participation Framework (“Participation Framework”)
developed by Queensland Health provides founding principles for the reform of
Queensland Health mental health services. Relevant principles include:
o
recognition that consumers, carers and families have an important role in the
recovery journey; and
o
commitment by mental health service leaders to consumer, carer and family
participation across all levels of service planning, development, delivery and
evaluation.56

The Act, in its principles for the administration of the Act, states that: 57
o
to the greatest extent practicable, a person is to be encouraged to take part in
making decisions affecting the person’s life, especially decisions about
treatment;
o
to the greatest extent practicable, in making a decision about a person, the
person’s views and the effect on his or her family or carers are to be taken into
account; and
o
a person is presumed to have capacity to make decisions about the person’s
assessment, treatment and choosing of an allied person.
<http://www.health.gov.au/internet/main/publishing.nsf/content/DA71C0838BA6411BCA2577A00
01AAC32/$File/servst10v2.pdf>.
53 Australian Commission on Safety and Quality in Health Care, The Australian Charter of Healthcare
Rights (Australian Government, January 2012)
<http://www.hqcc.qld.gov.au/Resources/Documents/Brochure-Australian-Charter-of-HealthcareRights-A-guide-for-consumers-carers-and-families-English-Jan-2012.pdf>.
54 Queensland Health, Queensland Plan for Mental Health 2007 – 2017 (Queensland Government, 2008)
<http://www.health.qld.gov.au/mentalhealth/abt_us/qpfmh/08132_qpfmh07.pdf>.
55 Ibid 10.
56 Queensland Health, The Consumer, Carer and Family Participation Framework (Queensland
Government, 8 December 2010) 7 < http://www.health.qld.gov.au/mentalhealth/ccfpf.asp>.
57 Mental Health Act 2000 (Qld) s 8(1)(b).
31
The current legislation does not give meaningful effect to the principle that people
should be able to participate in their treatment decisions.
While the current legislation provides aspirational principles relating to patient participation in
treatment decisions,58 it fails to enforce them through substantive rules.
Recommendation 10 – Treating psychiatrists should be required to consider the patient’s
treatment preferences when making treatment decisions.
There is no substantive provision in the current legislation requiring treating psychiatrists to
consider patient’s treatment preferences. The Act requires that an authorised doctor
prepare a treatment plan but it does not require the doctor to consider the person’s
preferences when making the plan.59 Further, the Director of Mental Health’s (“the Director”)
policy regarding treatment plans does not require the doctor to consider the person’s treatment
preferences but merely states that patients should be involved ‘as far as possible.’60
The aspirational provisions in the Director’s policy documents and in the principles for the
administration of the Act are insufficient to ensure patient participation in treatment decisions.
As a result, many of our clients feel that their preferences are not taken into account when
treatment decisions are made.
We recommend that the Act specifically require the treating psychiatrist to take into
consideration the patient’s treatment preferences. We further recommend that this is included
in section 124 in order to give the provision more meaningful effect.
The Mental Health Act 1986 (Vic) already provides for this recommendation in section 19A(2):
In preparing, reviewing and revising a treatment plan for a patient, the authorised
psychiatrist must take into account –
(a) the wishes of the patient, as far as they can be ascertained; and
(b) unless the patient objects, the wishes of any guardian, family member or primary
carer who is involved in providing ongoing care or support to the patient… 61
Ibid.
Mental Health Act 2000 (Qld) ss 110, 111, 124.
60 Director of Mental Health, Mental Health Resource Guide (Queensland Health, 31 May 2013), chap 4, 2.6
<http://www.health.qld.gov.au/mha2000/resource_guide.asp>.
61 Mental Health Act 1986 (Vic) s 19A(2).
58
59
32
Requiring the psychiatrist to consider the person’s treatment preferences in section 124 will
remind the psychiatrist of the need to engage in meaningful discussion with the person.
Recommendation 11 – If requested, treating psychiatrists should be required to record
the patient’s treatment preferences on the treatment plan.
A person on an ITO should be able to ensure that their treatment preferences are recorded.
Ideally, when a person under an ITO makes their treatment preferences known to health staff,
their preferences are recorded in their medical records. This does not always occur and our
clients often report that they are not able to make their treatment preferences known.
Allowing a person on an ITO to request that their treatment preferences be recorded on their
treatment plan will help to ensure that:

the person is able to comment in a significant way on their treatment;

the person’s wishes are recorded;

the treating psychiatrist considers the patient’s treatment preferences; and

the treating psychiatrist explains to the patient why they are prescribing a particular
medication, method of administration or dosage.
Recommendation 12 – Treating psychiatrists should be required to submit the patient’s
treatment plan to the Tribunal at each review hearing.
Sections 110 and 111 of the Act require the authorised doctor to prepare a treatment plan for
the patient and talk to the patient about their treatment under the plan. Despite these
provisions, our clients often report that they have not had access to their treatment plan and are
not sure if one has been made at all. Wyder et. al. report that a man under an ITO Googled
involuntary care and found out that he was entitled to see his treatment plan. When he asked to
see the plan, however, he was told that his behavior was unacceptable.62
As a result, we recommend that the psychiatrist be required to submit the patient’s treatment
plan to the Tribunal at each review hearing in addition to the clinical report. Further, the
Tribunal should review the treatment plan to ensure that it is made in accordance with the Act
(see recommendation 4 below). Requiring the psychiatrist to submit the patient’s treatment
plan to the Tribunal will help to ensure that:
62
M. Wyder, R. Bland, A. Herriot and D. Crompton, Understandings of the Involuntary Treatment Order
(2013) unpublished, 11-12.
33

a treatment plan is created for each person under an ITO;

the treatment plan is made in accordance with the Act; and

persons under an ITO are able to view their treatment plans.
New South Wales and Victoria already require the treatment plan to be submitted for a review
hearing and Western Australia has proposed this requirement in the Mental Health Bill 2012
(“the WA Bill).63 In Tasmania’s Mental Health Bill 2012, treating psychiatrists will be required to
give a copy of the treatment plan to the Tribunal each time the plan is altered.64
Recommendation 13 – The Tribunal should have the power to order that a treatment
plan be reviewed.
Under the current legislation the Tribunal does not have jurisdiction to make or vary treatment
decisions. This means that the treating psychiatrist has complete control over the treatment and
the patient has no method of reviewing the decision. Many of our clients have expressed
frustration that the Tribunal cannot review or make treatment decisions. While we recognise
that treatment decisions are clinical in nature and the Tribunal does not have the expertise to
make or overrule these decisions, an avenue of review is necessary to properly involve patients
in their treatment decisions and ensure accountability. MI Principle 11(16) states:
[t]he patient, their representative or any interested person, shall have the right to
appeal to a judicial or other independent authority concerning any treatment given to
him or her. 65
We recommend that the Tribunal have the power to order that a treatment plan be reviewed by
the treating psychiatrist. This will enable a person under an ITO to discuss their treatment
during Tribunal hearings and be more fully involved in the ITO process. It will also help to
ensure that the treating psychiatrist is aware of the person’s treatment preferences.
The review boards in Victoria and South Australia already have the power to order that the
authorised psychiatrist revise the treatment plan.66
Mental Health Act 2007 (NSW) ss 53(2)(a), (3)(b); Mental Health Act 1986 (Vic) s 35A; Mental Health
Bill 2012 (WA) s 374(1)(d).
64 Mental Health Bill 2012 (Tas) s 54.
65 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care, GA Res 46/119, UN GAOR, 75th mtg, UN Doc A/RES/46/119 (17 December 1991).
66 Mental Health Act 1986 (Vic) s 35A (2); Mental Health Act 2009 (SA) s 80(2) (d).
63
34
We further recommend that the Tribunal be given the power to make recommendations about
possible amendments to the treatment plan.
We recommend that Queensland adopt the following provision from the WA Bill:
[t]he Tribunal cannot make an order or give a direction … in relation to an involuntary
patient’s treatment, support or discharge plan, but may make –
(a) a recommendation that the patient’s psychiatrist review the treatment,
support or discharge plan; and
(b) if so, a recommendation about the amendments that could be made to the
treatment, support and discharge plan. 67
Giving the Tribunal these powers will help to ensure:

the treating psychiatrist has considered the patient’s treatment preferences;

the treating psychiatrist has ensured that the patient is receiving the most
appropriate treatment; and

greater accountability for treatment decisions.
We do not anticipate that this recommendation would increase the number or frequency of
Tribunal hearings significantly and therefore is unlikely to add a cost burden to the Tribunal.
We anticipate that any treatment issues would be explored as part of the person’s standard
Tribunal hearing (upon application or automatic review). The inclusion of treatment decisions
as part of the broader discussions that take place in the Tribunal would greatly enhance
patient’s perception of fairness of the ITO and Tribunal processes.
67
Mental Health Bill 2012 (WA) s 375.
35
Access to Independent Second
Psychiatric Opinions
Recommendations:
14. An independent second psychiatric opinion should be required under the Act before
the first Tribunal hearing. If the ITO continues, an independent second psychiatric
opinion should be required after six months, after 12 months and every two years
thereafter.
15. The Act should define what constitutes a second opinion. A second opinion should
require an in-person psychiatric assessment where practicable and an assessment via
videolink in other circumstances.
16. At a minimum, a person on an ITO should be entitled to an independent second
psychiatrist opinion if they request it.
17. The Tribunal should be required to consider conflicting psychiatric opinions.
In our experience, one of the main concerns of people under ITOs is that they are unable to get a
second opinion from an independent psychiatrist regarding their treatment or the application of
the treatment criteria. There is currently no system in place under the Act or in practice to
ensure that involuntary patients are able to access an independent second psychiatric opinion
at any stage of their involuntary treatment. This means that once the ITO is made, a person has
no right to a review of the opinion that led to them being placed on the order. As a result of the
initial recommendation and examination, often made during a period of crisis, a patient can be
kept on an ITO and treated involuntary for prolonged periods. For many patients, the precise
diagnosis and treatment can take months or years and can involve a protracted period of trial
and error. In our view, it is unjust that people on ITOs do not have a right to have a second
opinion during involuntary treatment.
Timely access to an independent second psychiatric opinion that addresses both the
treatment criteria and treatment is critical to safeguarding the rights of people subject to
involuntary treatment.
36
CURRENT POSITION IN QUEENSLAND
Under the Act, a second psychiatric opinion is not required at any stage after a person is placed
on an ITO. Outside of the emergency and criminal contexts, a person can be subject to
involuntary assessment in two circumstances. Firstly, a JEO may be issued by a Justice of the
Peace or Magistrate (see Section 1 for our recommendations regarding reform of the JEO
process).68 Secondly, a recommendation for assessment may be made by a doctor or authorised
mental health practitioner who has examined the person within the preceding three days.69
Neither process involves a psychiatric assessment.
Following a JEO or recommendation for assessment, a psychiatric assessment will then be
carried out by an authorised doctor.70 The doctor will then place the person on an ITO if they
consider that the treatment criteria apply to the person.71 If the assessment is carried out by a
doctor who is not a psychiatrist or was carried out using audiovisual facilities, an authorised
psychiatrist must confirm the ITO within 72 hours.72
The overall effect of these sections is that a person can be placed on an ITO if one
psychiatrist believes that the treatment criteria apply to the person. There is no
requirement for a second psychiatric opinion when a person is placed on an ITO or at any stage
of their involuntary treatment.
It is theoretically possible for involuntary patients to obtain a second opinion of their own
initiative, through their treating team or by order of the Tribunal. However, the Act fails to
provide any rules or processes to facilitate a patient’s request for a second opinion and in our
experience second opinions are rarely obtained. The Queensland Health Public Patients’ Charter
(“the Charter”) states that all public patients have a right to a second opinion. Under the Charter,
a patient’s treating team can arrange a second opinion within the public system, or the patient
can arrange it themselves privately.73 However, there is no framework to give effect to this
‘right’ under the Act.
Mental Health Act 2000 (Qld) ch 2 pt 3 div 2.
Ibid, s 19.
70 Ibid, s 46.
71 Ibid, s 108.
72 Ibid, s 112.
73 Queensland Health, Queensland Health Public Patients’ Charter (Queensland Government, 2002)
<,http://www.health.qld.gov.au/qhppc/docs/booklet.pdf>.
68
69
37
The Act gives the Tribunal the power to order a second opinion,74 although it does not set out
the circumstances in which the Tribunal should make an order or the factors it should consider.
In our experience, this power is rarely used. The Act also requires the Tribunal to consider
whether an examination and report should be obtained from another psychiatrist if an ITO has
been in force for more than six months.75 The Act does not set out what factors the Tribunal is
required to consider in making its decision. In our experience, this power is also rarely used.
Independence
Involuntary patients want a second psychiatric opinion from a doctor they perceive to be
independent. This often means they want a second assessment from psychiatrist from a
different mental health service to the one they are currently receiving treatment through.
People on ITOs have expressed concern that psychiatrists within services work closely together
and will not risk jeopardising a professional relationship with a colleague by making a
significantly different assessment.
Even if a person is content to obtain a second opinion within the same mental health service,
there is no mechanism in the Act or in practice for them to do so. The person can only request
that their treating team arrange the assessment. While some mental health services are quite
willing to accommodate this request, others are not. In any event, the treating team is not legally
obliged to arrange the assessment, and the person has no avenue to seek a review of the
treating team’s refusal or inaction regarding their request.
Further, the practical impediments in obtaining a second opinion from a private psychiatrist
means that people on ITOs are usually unable to get one. Patients must book and attend the
appointment, there may be a considerable delay, and they may incur significant costs.
Arranging a private assessment
People on in-patient ITOs are detained in hospital. Their ability to communicate is curtailed, as
access to telephone, fax and email is usually limited. Their ability to leave the hospital to attend
appointments may also be restricted. Private psychiatrists usually require patients to attend
their consultation rooms, and generally will not come to the psychiatric ward of a public
74
75
Mental Health Act 2000 (Qld) s 457.
Ibid s 190.
38
hospital to see a patient. It is therefore practically impossible for involuntary in-patients to book
and attend an appointment with a private psychiatrist.
Delay
People seeking an appointment with a psychiatrist can expect to wait at least several weeks in
metropolitan areas, and up to several months in regional areas. This is particularly problematic
for involuntary patients because:

in-patients will be detained in hospital against their will while waiting for the
appointment, at significant personal cost to the patient and financial cost to the
taxpayer;

all involuntary patients will be forced to continue to receive treatment that they may
strongly disagree with;

scheduled Tribunal hearings may have passed before the patient is able to get the
second opinion; and

the patient’s treating team may have taken the patient off the ITO in the meantime,
which means that the patient will not get an opportunity to dispute the reasons for the
ITO by providing a second opinion.
Cost
The cost of obtaining a second opinion from a private psychiatrist varies, but is prohibitively
expensive for many of our clients. Medicare will reimburse 85 per cent of the Medical Benefits
Schedule (MBS) fee for an appointment with a psychiatrist where a patient has been referred.
The current MBS fee for an initial psychiatrist appointment is $260.30, of which patients are
reimbursed $221.30.76
In our experience, psychiatrist appointments cost much more than the MBS fee. This means
patients who want to get a second opinion from a private psychiatrist can be out of pocket
several hundred dollars. This is often a prohibitive cost for our clients, many of whom rely on
Centrelink payments as their only source of income.
76
Department of Health and Aging, Medicare Benefits Schedule Book (Australian Government. 1 July
2013)
<http://www.health.gov.au/internet/mbsonline/publishing.nsf/Content/726B5CA23CFBFC36CA257
B7B007FD9A0/$File/201307-MBS.pdf>.
39
Status and effect of second psychiatric opinions
In the unusual situation where an involuntary patient obtains a second psychiatric opinion, the
Act does not explain the status or effect of that opinion. If the opinion differs from their treating
psychiatrist, the Act does not require this to be taken into account by the treating team or the
Tribunal. This means it is unclear:

what weight, if any, the authorised psychiatrist should give the second psychiatric
opinion, and whether the authorised psychiatrist should review the patient’s treatment
plan in light of the opinion;

whether the Tribunal is required to consider the second opinion and what weight it
should be given;

how conflicting psychiatric opinions are to be resolved; and

what rights the patient has regarding the second opinion.
In summary, problems with independence, arranging appointments, delay and cost mean that
people on ITOs rarely obtain a second psychiatric opinion at any point during their involuntary
treatment. If they do, the status and effect of the opinion is unclear. In our view these are major
flaws in the operation of the Act, and we propose four recommendations for change outlined
below.
Recommendation 14 – An independent second psychiatric opinion should be required
under the Act before the first Tribunal hearing. If the ITO continues, an independent
second psychiatric opinion should be required after six months, after 12 months and
every two years thereafter.
Second psychiatric opinion
In our view, a second psychiatric opinion should be required in relation to all involuntary
treatment. This is because:

the decision to make an ITO has serious and ongoing ramifications for the person
involved and their family. A person under an ITO is deprived of their personal
autonomy, their right to freedom of movement77 and their right not to be subjected to
treatment without their consent;78
77
78
UDHR, UN Doc A/810, art 13.
CRPD, UN Doc A/RES/61/106 art 25(d).
40

the grounds for involuntary treatment should be subject to effective scrutiny and
oversight;

although the Tribunal can assess the legal grounds for involuntary treatment, it is not
their role to critically assess the medical reasons given for treatment; and

an opinion from another psychiatrist is the only way to ensure that the medical basis for
involuntary treatment is adequately scrutinised. As in all areas of medicine, medical
errors are always a possibility. The consequences of medical error for the patient are
particularly grave in the context of involuntary treatment where the patient’s rights and
liberty are at stake.
It is also our view that the second opinion should address both the treatment criteria and
treatment. This means that the second psychiatrist would be required to comment on whether
the treatment criteria are satisfied, and on the proposed treatment plan. In our experience,
people on ITOs often accept the need for the ITO, but strongly disagree with the proposed
treatment (see Section three). They may disagree with the type, dosage or method of
administration of medications. A second psychiatric opinion is an important step in addressing
these concerns. It will also have additional benefits, including:

promoting self-determination for patients by providing them with information about
their treatment and possible alternative treatments;

allowing patients to better understand their illness; and

empowering patients to contribute to decision-making about their treatment and fully
participate in their treatment and recovery.
Independence
We submit that the second opinion should be given by a psychiatrist from outside the relevant
mental health service. This is because:

There is a risk that doctors working closely together will be reluctant to make findings
that are substantially different from their colleagues. Doctors may have reasonable
concerns about the damage this could do to their professional relationships with
colleagues.

The appearance of independence is critical to the patient’s willingness to accept the
opinion. Opinions from doctors within the same system as the authorised psychiatrist
are perceived to be lacking independence and therefore illegitimate.
41
If our recommendation that the second psychiatric opinion come from an independent
psychiatrist is not accepted, Recommendation 1 should still be adopted. In our view the
requirement for mandatory second opinions before the first Tribunal hearing, after 6 and 12
months, and two years thereafter is critical to the person’s perception of fairness, even if the
second opinion comes from another psychiatrist within the Mental Health Service.
Implementation
We submit that the best way to give effect to Recommendation 1 is to establish a panel of
independent psychiatrists similar to the SOAD service operating in England. The SOAD service
operates as follows:79

Consultant psychiatrists apply to the Care Quality Commission, the regulator of health
and social care in England, to be appointed to the panel of available doctors.

The doctor responsible for the involuntary patient makes a request to the SOAD service
for a second opinion (see below for an explanation of when a second opinion is required
under the UK Act). This request can be made online.

The SOAD service will then arrange for one of the psychiatrists on the panel to assess
the patient and provide a report. The SOAD service pays a fee to the psychiatrist.
Before the first Tribunal hearing
As discussed in Section two (Involuntary Treatment Orders), we recommend that an authorised
psychiatrist should have the power to make a 28-day ITO. A Tribunal hearing should be held
within 28 days, at which time the Tribunal will decide whether to make an indefinite order or to
revoke the 28-day order. We submit that an independent second psychiatric opinion should be
required before the first Tribunal hearing.
A similar system currently exists in Scotland under the Mental Health (Care and Treatment)
(Scotland) Act 2003 (“the Scottish Act”). Under the Scottish Act, the Mental Health Tribunal must
determine if a person should continue to be treated involuntarily after 28 days. Two medical
reports recommending involuntary treatment are required before the Mental Health Tribunal
can make a compulsory treatment order.80
Care Quality Commission, Second opinion appointed doctors (SOADs),
<http://www.cqc.org.uk/organisations-we-regulate/mental-health-services/mental-health-actguidance/second-opinion-appointed#1>.
80 Mental Health (Care and Treatment) (Scotland) Act 2003 s 57.
79
42
A requirement for a second opinion also exists under United Kingdom mental health legislation.
Under the Mental Health Act 1983 (UK) (“the UK Act”), a second opinion is required after three
months of in-patient involuntary treatment if the patient does not consent to further treatment.
A second opinion is required after one month of community involuntary treatment if the patient
is not capable of consenting. The second opinion is provided through the Second Opinion
Appointed Doctor (SOAD) service (see above).
After six months, 12 months and every two years thereafter
Currently, ITOs are reviewed automatically by the Tribunal every six months. The Tribunal is
required to determine whether the treatment criteria still apply to the person subject to the ITO.
We believe that a further independent second psychiatric opinion should be required under the
Act when a person has been on an ITO for six months. This opinion would be required to
coincide with the Tribunal hearing.
In our view the same rationale for requiring a Tribunal hearing every six months also supports
ongoing second psychiatrist opinions. That is, the need for review of involuntary treatment at
regular intervals. As outlined above, we believe that second psychiatric opinions are an
essential part of effective review of involuntary treatment. Requiring an independent second
psychiatric opinion after six months, 12 months and every two years thereafter will ensure that
the medical basis and justification for ongoing involuntary treatment is adequately scrutinised.
Recommendation 15 – The Act should define what constitutes a second opinion. A
second opinion should require an in-person psychiatric assessment where practicable
and an assessment via videolink in other circumstances.
In practice, second opinions are sometimes provided without an actual personal examination of
the patient. In our view, a second opinion should require an in-person psychiatric assessment
where practicable and an assessment via video link in other circumstances. The Act should
define what constitutes a second opinion and should define the circumstances in which a second
opinion may be given without a physical or face to face examination. Further, where a second
opinion has been given, that opinion should be in the form of a separate written report that
addresses both the treatment criteria and the treatment.
Recommendation 16 – At a minimum, a person on an ITO should be entitled to an
independent second psychiatrist opinion if they request it.
43
If recommendation 14 is not accepted, it is critical that people on ITOs have access to at least
one independent second psychiatric opinion in the duration of the ITO. This is because second
psychiatric opinions are a critical safeguard in the context of involuntary treatment, for the
reasons outlined above.
Recommendation 17 – The Tribunal should be required to consider conflicting
psychiatric opinions.
Where a second opinion is in conflict with the authorised psychiatrist’s opinion regarding the
need for involuntary treatment, the Tribunal should be required to have regard to the second
opinion under the Act. The Tribunal should be required under the Act to explain the basis for
their decision to accept one opinion over the other in their written reasons.
Consistent with recommendation 13, it is our view that where there are conflicting psychiatric
opinions regarding treatment, the Tribunal should have the power to order that the authorised
psychiatrist review the proposed treatment plan.
44
Advocacy Services
Recommendations:
18. Every person on an ITO should be entitled to an advocate or legal representative at
Tribunal hearings.
19. The role of advocates should be explicitly recognised in the Act.
20. Advocates should have the right to appear before the Tribunal.
21. An advocate should be appointed to people under ITOs who do not have the capacity
to appoint an allied person.
22. A legal representative should be appointed to people subject to ECT or psychosurgery
applications.
23. The Tribunal should be empowered to provide basic contact information for all
clients with scheduled hearings before the Tribunal to approved advocacy and legal
services.
Background
While a person under an ITO can have legal representation before the Tribunal,81 most people
on ITOs are not represented. In Queensland there are over 11 000 scheduled hearings in the
Tribunal each year, with approximately 75 per cent of hearings reviewing ITOs.82 Currently,
around 43 per cent of patients participate in their Tribunal hearings and just over two per cent
of patients have any form of representation.83 This is the lowest rate of representation in mental
health tribunal hearings in Australia.84 While the lack of representation is essentially a funding
issue, there are also other factors including:
 a culture that is not familiar or welcoming to, the role of advocates or lawyers; and
 a lack of knowledge by people on ITOs about services available.
In our view, an explicit recognition of the role of advocate in the Act will go some way to
addressing cultural and access issues.
Mental Health Act 2000 (Qld) s 450(2).
Above n 9.
83 Ibid.
84 Above n 1.
81
82
45
Recommendation 18 - Every person on an ITO should be entitled to an advocate or legal
representative at Tribunal hearings.
It can be extremely daunting for a client and their family to navigate the mental health system,
particularly during their first encounter. Most people on an ITO have difficulty advocating for
themselves either with their treating team or at their review hearings. Many people have little
understanding of the legal framework or the role of the Tribunal. The low rate of attendance is a
result, in part, of the sense of futility by patients in attending their hearing. Many of our clients
have reported to us that they don’t see the point of attending the Tribunal because the Tribunal
“is on the doctor’s side anyway”.
On the other hand, where one of our advocates is able to assist, clients report a much greater
understanding of the purpose of the ITO, the role of the Tribunal and a better understanding of
what they need to do to persuade the treating team and Tribunal that they can take
responsibility for their own treatment. They are also, in general, much more accepting of the
outcome of the hearing even where it was not the outcome they were seeking.
For example, one recent client was very angry about being on the ITO and her treatment prior
to the hearing. Afterwards, she told us “now, I understand what the ITO is about and what will
happen next and how I need to work with the doctor.” She was happy with both the process and
the outcome of the hearing even though the ITO was confirmed.
Another client asked our advocate to assist him to communicate with the treating team prior to
the hearing. As a result of our advocate’s assistance, the doctor was persuaded to revoke the
ITO and an unnecessary Tribunal hearing was averted. The client in that case had a private
psychiatrist, accepted his diagnosis and had a very supportive family.
In our view, every person on an ITO should be entitled to have an advocate or legal
representative appointed to represent them at their Tribunal hearing.
While it may have been envisaged that the allied person would have adequately represented the
person, in our experience this has not been the case.
46
Allied person
Under the Act, a person on an ITO has the right to choose an allied person.85 The role of the
allied person is to assist the person under an ITO to represent their views, wishes and interests
relating to their assessment, detention and treatment under the Act.86 An allied person can be:

if the patient is a minor – a parent of the minor or the minor’s guardian;

if the patient has a personal guardian – the guardian;

if the patient has a personal attorney – the attorney;

an adult relative or adult close friend of the patient;

an adult carer of the patient; or

another adult.87
In our experience, there are a number of practical issues that prevent the allied person
provisions in the Act from operating effectively.
Friends or family members who take on the role of allied person often have conflicting personal
opinions about the treatment and recovery of the person on the ITO. In particular, we have
found that allied persons may think that the patient should remain on an ITO despite the
patient’s wishes to the contrary. In these situations the allied person may find themselves
unable to properly represent the patient’s views and wishes as required under the Act. It is
particularly difficult for those acting as an allied person to represent the patient’s views if they
personally initiated the ITO process.
Under the Act, if a person does not have capacity to choose an allied person, and they have not
appointed one in an advance health directive, the administrator of the health service is required
to appoint one on their behalf.88 The administrator is required to appoint the first person, listed
in the dot points above, who is willing, readily available, capable and culturally appropriate to
act as an allied person.89 While in theory it is appropriate to appoint a parent or guardian to act
as the patient’s allied person, this is not always the case. In some circumstances, it may be more
appropriate to appoint a sibling or friend, even when the parent or guardian is willing and
available. For this reason allied persons appointed by health service administrators are
Mental Health Act 2000 (Qld) s 341.
Ibid s 340.
87 Ibid s 341 (1).
88 Ibid s 342.
89 Ibid s 342(4).
85
86
47
sometimes unable or unwilling to represent the patient’s views accurately to the treating team
or the Tribunal.
According to the Act, the Adult Guardian should be appointed as the allied person for a patient
by the health service administrator if no one else is willing, readily available, capable and
culturally appropriate.90 In the case of children, the Commissioner for Children and Young
People and Child Guardian should be appointed.91 However, we have found that in practice
many people on ITOs do not have an allied person at all.
Our clients often report that they do not know anyone who can as act an allied person or that
their family and friends are not prepared to act as an allied person. Family and friends may not
want to take on the role of allied person because:

they have conflicting views to the patient;

they are nervous about committing to the formal role of allied person, particularly in
relation to speaking at a Tribunal hearing;

they have insufficient knowledge of the mental health system or the patient’s rights and
therefore lack confidence to represent the patient; or

they do not want to become involved in existing disputes with other family members or
friends.
While some of our clients do have an allied person, that person may still not be able to
adequately represent the person’s views to the treating team or to the Tribunal for any of the
reasons above. In these instances, our advocates work with the allied person, while making it
clear that they represent the patient only, to ensure the person’s views are expressed and rights
are protected.
On the other hand, many of our clients on ITOs do not have an allied person in which case our
advocates play an essential role to ensuring engaged participation and rights protection.
According to the Tribunal’s latest annual report, a ‘patient support’ person was present in only
25.3 per cent.92
Mental Health Act 2000 (Qld) s 341(4)(b)(i).
Ibid s 341(1)(4)(b)(ii).
92 Mental Health Review Tribunal, Annual Report 2011-2012 (Queensland Government), 16. This does not
include representation by an advocate or legal representative.
90
91
48
Legal Representation
While there is clearly a role for legal representatives in the Tribunal, it is not necessary that a
legal representative be appointed to every person on an ITO. Athough specialist mental health
legal services such as Queensland Advocacy Inc play an essential role for patients under the Act,
in our experience, there are a number of problems that can prevent other (non-specialist) legal
representatives from providing proper support to people on ITOs:

legal representatives are trained in the adversarial model not in therapeutic
jurisprudence and can be more inclined to take a “legalistic” or adversarial approach
which is not appropriate in the Tribunal;

legal representatives may be inclined to “speak for” the client instead of supporting the
client to speak for themselves which is more consistent with the recovery framework
underlying mental health policy and the Tribunal process;

legal representatives are costly and there are very few services that provide free legal
representation to people attending Tribunal hearings;

legal representatives generally have no expertise in mental health law; and

legal representatives are “authority figures” and can be intimidating to clients,
particularly where the client is already experiencing frustration or disillusion with
health and other legal officials.
Consequently, legal representatives may be less suitable than advocates taking into account the
non-adversarial nature of the Tribunal.
Under the current system there is a low level of participation and representation in
Tribunal hearings.
The practical problems with the allied person model and the lack of available effective legal
representation, has resulted in a culture of low participation and a widespread sense of futility
regarding Tribunal hearings. In our experience, clients often feel that there is no point in
attending their hearings as they believe that the Tribunal will simply confirm the order.
Advocates
The Victorian Department of Health has highlighted that supported decision making is
fundamental to recovery-orientated practice. In A new Mental Health Act for Victoria: Summary
of Proposed Reforms, the Department affirmed its commitment to funding advocacy and support
49
services for people receiving public mental health services.93 Specifically the publication
commented that:
[o]n request, advocates will visit mental health services or provide telephone advice to
assist people to participate in decisions about their assessment, treatment and
recovery. These supports will empower patients to self-advocate as well as make
choices about their treatment and recovery.
In addition the advocates will provide information and assist people to understand and
exercise their rights. The advocates may also make representations on behalf of people
receiving mental health services. Advocates will talk with people receiving mental
health services about any concerns about their treatment and support them to find
solutions and to make decisions.94
In our experience, advocacy services provide a number of invaluable benefits including:

increased understanding by clients of the Tribunal and the mental health system;

increased engagement by clients in the Tribunal process;

clearer presentation of more complete and relevant information to the Tribunal to assist
in its decision making;

increased understanding of the treating team of the legal framework in which clinical
decisions are made;

increased protection of client’s rights; and

increased awareness in the community about mental health issues.
Advocates successfully fill the gap between legal representation and allied persons: they are
independent, comprehensively trained and sensitive to the therapeutic and non-adversarial
nature of Tribunal hearings.
As the Tribunal is not subject to the rules of evidence, both advocates and legal representatives
play an important role in bringing the Tribunal’s attention to evidence that may be
unsubstantiated or incorrect. In this way advocates and legal representatives help to protect
people from being unjustly subject to an ITO.
93
94
Above n 40.
Ibid.
50
Taking into consideration the special needs of children subject to ITOs, we recommend that
every child who is placed on an ITO be automatically provided with an independent advocate or
legal representative. See Recommendation 27 for further detail.
Recommendation 19 – The role of advocates should be explicitly recognised in
the Act.
We recommend that the following provisions be included in the Act:
Who is an advocate
An advocate for an involuntary patient is the person chosen or declared under this part
to be the patient’s advocate.
Function of advocate
The function of an involuntary patient’s advocate is to help the patient to represent the
patient’s views, wishes and interests relating to the patient’s assessment, detention,
treatment and care under this Act.
By recognising the role of advocates in the Act, health professionals may be more willing to
engage with advocates in discussions about the patient’s ITO and treatment. Better
communication between health professionals and advocates will lead to greater involvement of
the person under the ITO in treatment decisions. This is consistent with the recovery
framework.
We are aware of only a small number of advocacy services available in Queensland for people on
ITOs. Some other jurisdictions which recognise the role of advocates have one advocacy agency
to which referrals are made. In the absence of a central advocacy agency in the State, it may be
appropriate for the Tribunal to maintain a list of suitable advocacy services to which referrals
can be made. This could be done through policy rather than through legislative change so at this
point we do not intend to make any specific recommendation.
Recommendation 20 – Advocates should have the right to appear before the Tribunal.
The Act currently provides an express right to representation by a legal representative and an
allied person.95 Under the Act, advocates may only attend a hearing and assist a client with the
95
Mental Health Act 2000 (Qld) s 450- 455.
51
leave of the Tribunal.96 The MHLP maintains a strong relationship with the Tribunal and to
date, our advocates have always been granted leave. However, if the right to appear is not
formalised, there can be no guarantee of a client’s right to representation by an advocate.
We recommend that sections 450 to 454 be amended to provide advocates with a right of
appearance at Tribunal hearings. Alternatively, section 455 should be amended to provide
advocates with a right of appearance at Tribunal hearings to assist the person to represent their
views, wishes and interests.
In Tasmania, a party to a proceeding before the Mental Health Tribunal is entitled to be
represented by a legal practitioner or other person.97 Advocacy Tasmania Inc (‘ATI’)98 has
provided a pro-bono advocacy service to clients scheduled to appear before the Mental Health
Tribunal since 1990. From 2011-2012, just over 72 per cent of involuntary patients attended
their hearing before the Mental Health Tribunal.99 In the same year 51.5 per cent of patients
appearing before the Mental Health Tribunal were represented by an advocate under the ATI
Mental Health Tribunal Representation Scheme.100
In the Australian Capital Territory, the Mental Health (Treatment and Care) Act 1994 (ACT)
specifically identifies a community advocate as being entitled to appear and give evidence at a
proceeding.101
The Mental Health and Related Services Act 1998 (NT) provides people who are the subject of a
review or involuntary detention application a right of appearance and representation.102
Further, the Tribunal may only conduct a hearing in the absence of the person or that person’s
representative where:

reasonable notice of the hearing has been provided;

the person or representative has a reasonable opportunity to attend the hearing; and
Ibid s 455.
Mental Health Act 1996 (Tas) s 57.
98 Advocacy Tasmania Inc. is an independent, non-government organisation that has provided advocacy
services across Tasmania since 1990. ATI provides a free, State-wide, independent and confidential
'Your Say' advocacy service to older people, people with mental health issues, people with disabilities
and people with drug and/or alcohol related problems, their carers and relatives. See the ATI website
at <http://www.advocacytasmania.org.au/index.htm>.
99 Ibid.
100 Ibid.
101 Mental Health (Treatment and Care) Act 1994 (ACT) s 89.
102 Mental Health and Related Services Act 1998 (NT) s 131(1).
96
97
52

where the person or representative refuses to attend the hearing.103
In 2011-2012, the Northern Territory Mental Health Review Tribunal had over 1200 matters
scheduled for determination. In this year 100 per cent of patients attending their hearings were
legally represented. In 2011-2010, representation was only slightly lower at 98 per cent.104
In Victoria, the Mental Health Act 1986 (Vic) provides an express right to representation by a
lawyer or other advocate in a hearing before the Mental Health Review Board.105
Recommendation 21 – An advocate should be appointed to people under ITOs who do not
have the capacity to appoint an allied person.
As discussed above, people on ITOs who do not have capacity to appoint an allied person may
have an inappropriate person appointed, or have no allied person appointed at all. We
recommend that an independent advocate, as opposed to an allied person, should be appointed
when a person is unable to appoint their own allied person.
Article 13(1) of the CRPD106 states that persons with a disability should have “effective access to
justice … on an equal basis with others.” Additionally, the MI Principles107 include:

the right to choose and appoint a legal representative, or to have one at no cost to the
patient where the patient is unable to secure or pay for these services;108 and

the right to a personal representative apart from a family member.109
Advocates will help to ensure that the Tribunal and treating team are aware of the person’s
social circumstances and their wishes, views and interests in relation to their treatment. The
person will still have the right to appoint an allied person in addition to an advocate when they
have capacity.
Mental Health and Related Services Act 1998 (NT) s 131(5).
Mental Health Review Tribunal, Annual Report 2011-2012 (Northern Territory Government)
<http://www.nt.gov.au/justice/documents/depart/annualreports/mhrt_annual_report_2012.pdf> 9,
12.
105 Mental Health Legal Centre Inc and Victoria Legal Aid, ‘Patient’s Rights: A Self-Help Guide to Victoria’s
Mental Health Act’ (2010) 40.
106 CRPD, UN Doc A/RES/61/106.
107 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health
Care (1991) GA Res 46/119. UN Doc A/Res/46/119.
108 Ibid principle 18.
109 Ibid principle 2.
103
104
53
Recommendation 22 – A legal representative should be appointed to people subject to
ECT or psychosurgery applications.
Because of the controversial nature of Electroconvulsive Therapy (ECT) and psychosurgery and
the social stigma attached to these treatments, we recommend that a person who is the subject
of an ECT or psychosurgery application be entitled to legal representation for the Tribunal
hearing. If the person does not have a legal representative, then a legal representative should
be appointed by the Tribunal. The Tribunal should maintain a list of appropriate legal
representatives for these applications. Providing people with an independent legal
representative for these matters will ensure that the person’s views are heard, that legal
requirements are followed and that the person perceives that they have received a fair hearing
before such treatments are authorised.
While in 2010-2011 ECT applications represented only 3.7 per cent of all Tribunal hearings and
there weren’t any psychosurgery applications,110 we recognise that there is a cost implication
with this recommendation. If appointing a legal representative to each person subject to an ECT
application is not possible, we recommend appointing an advocate from an approved advocacy
service.
Recommendation 23 – The Tribunal should be empowered to provide basic contact
information for all clients with scheduled hearings before the Tribunal to approved
advocacy and legal services.
In our experience, there is a significant disconnect in Queensland between available advocacy
services and patient’s knowledge of such services and their ability to access them. Given the
often distressing and overwhelming nature of ITO procedures, people may not be in a position
to consider and contact relevant advocacy and legal services without advice or guidance. Unless
the treating team or Tribunal specifically advise the person of available services, most people
will not become aware of, and therefore will not access, advocacy and legal services.
Under the Act, the Tribunal is unable to provide contact information of people on ITOs to
advocacy or legal services. Sections 525 and 526 of the Act preclude a person from publishing a
report of a proceeding of the Tribunal or publishing information that identifies a person who is
a party to a Tribunal hearing.
110
Above n 9.
54
Conversely, Australian Capital Territory legislation links clients with advocacy services by
requiring the ACT Civil and Administrative Tribunal to provide a notice to the Public Advocate
(‘PA’) within 12 hours of the involuntary detention of a person being authorised.111 The PA is an
independent Government Service that is separate from the hospital, the Mental Health
(Treatment and Care) Act 1994 (“the Tasmanian Act”), the ACT Civil and Administrative Mental
Health Tribunal and the police. The PA operates to support and assist patients to present their
views and concerns before the Civil and Administrative Mental Health Tribunal. Although the PA
cannot provide legal advice, it plays a key role in linking patients with legal services.112
Similarly in Tasmania, the Mental Health Tribunal provides the coordinator of the ATI Mental
Health Tribunal Representation Scheme with hearing lists for upcoming hearings, allowing the
Scheme to offer advocacy to 100 per cent of patients.113 The information sharing role played by
the Mental Health Tribunal in this regard is vital to the Scheme’s ability to offer and provide its
advocacy services. The Tasmanian Act makes the provision of this information possible by
stating that:
[n]othing in this section prohibits the Mental Health Tribunal or Forensic Tribunal from
publishing notices of hearings or other notices that may be necessary in the interests of
justice or for the proper administration of this Act. 114
We recommend that sections 525 and 526 of the Act be modified in a similar manner to the
Tasmanian Act to allow the Tribunal President to provide contact information to approved
advocacy and legal services.
Mental Health (Treatment and Care) Act 1994 (ACT) s 42. See also section 20 regarding notice to be
given following an assessment order being made.
112 The Public Advocate of the ACT, ‘Mental Health Advocacy’
<http://cdn.justice.act.gov.au/resources/uploads/PAACT/publications/mental_health_advocacy.pdf>.
113 Advocacy Tasmania Inc, Annual Report 2011-2012 57
<http://www.advocacytasmania.org.au/publications/ATI_annual_report_11-12.pdf>.
114 Mental Health Act 1996 (Tas) s 85 (3).
111
55
Treatment of Children
Recommendations:
24. ‘Child’ should be defined as persons less than 18 years of age and used consistently
throughout the Act.
25. The presumption of capacity regarding children should be clearly stated.
26. Where the child does not have capacity, the child’s parent or guardian should be able
to make decisions about the child’s assessment, treatment and choice of an allied
person.
27. Children on an ITO under the Act should be provided with an independent advocate
or legal representative
28. Children on a Forensic Order under the Act should be provided with an independent
legal representative.
29. The Tribunal should be required to conduct a hearing for child patients under an ITO
within seven days after the order is made and afterwards at intervals of not more
than three months.
30. ECT should only be used on children where it is in the child’s best interests and where
a second opinion from a Child Psychiatrist has approved the treatment.
31. Psychosurgery should only be used on children where it is in the child’s best interests
and where a second opinion from a Child Psychiatrist has approved the treatment.
32. The Act should be amended to provide that the following principles apply specifically
to the assessment and treatment of children:
a) the best interests of the child are the primary consideration;
b) the views of the child are to be considered;
c) the views of the parents or guardian of the child are to be considered;
d) children should be treated by a Child Psychiatrist where this is reasonably
practicable; and
e) children being treated as in-patients should be treated in a separate facility to
adult patients where this is reasonably practicable.
56
Recommendation 24 – ‘Child’ should be defined as persons less than 18 years of age and
used consistently throughout the Act.
The Act refers interchangeably to a child, minor and young person. The use of interchangeable
terms regarding children within the Act is unclear and confusing. The term ‘child’ should be
used consistently throughout the Act in place of young person and minor. This will ensure that
there is clarity about who particular provisions apply to.
A ‘young person’ is defined as an individual under 17 years of age.115 The Act defines ‘child’ by
reference to the Youth Justice Act 1992 (Qld) (“the Youth Justice Act”).116 The Youth Justice Act
defines a child as a person who has not yet turned 17 years or if the person has turned 17 but is
not yet 18 years, on a day fixed by regulation.
The terms young person, child and minor are not defined in the Act. Provisions in the Act that
refer to a young person include sections 52, 55, 102, 412, 460, 460A and 526. Provisions that
refer to a child include sections 70, 86, 90A, 91, 216, 218, 237, 245, 250, 252, 286, 291, 318D,
318P, 324 and 493AP. Provisions that refer to a minor include sections 45, 70, 189, 232, 341,
342 and most of Ch 7A. There does not appear to be a clear policy reason for the different uses
of these three terms.
In our view, there should be one clear definition of a ‘child’ being a person under the age of 18.
Adopting this definition is consistent with other pieces of Queensland legislation regarding
children, including the Child Protection Act 1999 (Qld)117 and the Acts Interpretation Act 1954
(Qld). 118
It is also consistent with the Mental Health Act 2009 (SA),119 WA Bill120 and the Mental Health
Bill 2012 (Tas) (“the Tasmanian Bill”) 121which define ‘child’ as persons under the age of 18.
Recommendation 25 – The presumption of capacity regarding children should be clearly
stated.
Under the Act a person is presumed to have capacity to make decisions about their assessment,
treatment and choice of allied person.122 As ‘person’ is defined as including both adults and
Mental Health Act 2000 (Qld) sch (definition of ‘young person’).
1992 (Qld).
117 sch 3 (definition of ‘child’).
118 s 36 (definition of ‘child’).
119 s 3.
120 s 4.
121 s 3.
115
116
57
minors,123 a child is presumed to have capacity to make decisions about their assessment,
treatment and choice of allied person.
Under the common law, a child does not have a presumed capacity to consent to medical
treatment. The Gillick competence test is used to determine circumstances where a child may
be found to have the capacity to consent to treatment.124
To satisfy this test, the child must demonstrate they have sufficient maturity and intelligence to
fully understand the nature and implications of the treatment, including the risks and
alternative courses of actions available. We recognise that the law in this area is ambiguous,
particularly with respect to whether a child has the capacity to refuse treatment. However, this
flexibility is necessary to provide for the potentially diverse range of decisions regarding a
child’s care and medical treatment and to respect the development of a child’s maturity and
intelligence.
Despite this, we believe that the presumed capacity of children under the Act should remain and
be clearly stated. Children should be encouraged to participate in treatment decisions and
retain autonomy in making decisions that will have a significant impact on their life. Meaningful
participation in treatment decisions is a central tenet in recovery from mental illness. This is no
less important for children then for adults.
Children with mental illness should be presumed to have capacity to make decisions about their
assessment, treatment and choice of allied person. This presumption should only be displaced if
it can be demonstrated that a child does not have sufficient maturity and intelligence to fully
understand the nature and implications of their treatment. In this instance, a properly
conducted medical assessment of capacity should be undertaken and documented.
Capacity should also be decision and context specific. For example, a child may have capacity to
choose an allied person but lack capacity to accept or refuse anti-psychotic treatment. An
explicit presumption of capacity in the Act would help to ensure that the child’s views on all
decisions is respected as far as possible and that the onus for determining lack of capacity is on
the treating team.
This recommendation does not change the current position under the Act but simply makes a
child’s presumption of capacity explicit.
Mental Health Act 2000 (Qld) s 8(1)(b).
Ibid s 4.
124 Deptartment of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218.
122
123
58
Recommendation 26 – Where the child does not have capacity, the child’s parent or
guardian should be able to make decisions about the child’s assessment, treatment and
choice of an allied person.
Currently, the Act does not provide for circumstances where a child lacks capacity to make
decisions about their assessment, treatment and choice of allied person. In our view, a child’s
parent or guardian is generally the most appropriate person to make such decisions in
circumstances of lack of capacity. Where the parent or guardian is not the most suitable person
to make decisions on behalf of the child, further safeguards should be included to ensure the
child’s interests are protected.
The Tasmanian Bill 2012 provides for this recommendation in section 9(1):
[f]or the purposes of this Act, informed consent for the assessment or treatment of a
child who lacks decision-making capacity may be given by a parent of the child.
The WA Bill also makes a similar provision in section 13(2):
[f]or the purposes of this Act, if a child does not have the capacity to make a decision
about a matter relating to himself or herself, the child’s parent or guardian may make
the decision on the child’s behalf.
The relationship between the child and his or her primary carer is central to the ongoing
management of and recovery from a child’s mental illness.
The parent or guardian will
generally have the child’s best interests at heart and will have knowledge and understanding of
the history and context of the illness which ought to be taken into account.
In some circumstances, however, a history of family conflict and relationship difficulties
between the child and his or her parents can contribute to the symptoms of the child’s illness,
impact on recovery and create difficulties for the treating team in managing the child’s
treatment. Anecdotally, it is not uncommon for parents to initiate an ITO, perhaps as a behavior
control mechanism, even where the treating team has a preference for avoiding this.
The central role of the child’s parent or guardian in recovery oriented practice must be explicitly
acknowledged and for this reason we recommend that where the child does not have capacity,
the parent or guardian should be given the right to make decisions for the child (see
Recommendation 31c below).
59
This proposal, however, should be balanced by inclusion of mechanisms to ensure the child’s
rights are protected and preferences are considered. This must be done in a way that gives
support to the child without doing harm to the clinical objectives or to the child’s relationship
with their family. For this reason, we also recommend that the Act be amended to provide that
an independent advocate or legal representative be appointed for every child on an ITO or
Forensic Order (see Recommendations 27 and 28 below for further discussion).
Recommendation 27 – Children on an ITO under the Act should be provided with an
independent advocate or legal representative.
Children with a mental illness are particularly vulnerable and limited in their ability to protect
their interests and navigate the complexities of the mental health system. All children being
treated under the Act should be provided with an independent advocate to better protect their
interests.
The Mental Health Statement of Rights and Responsibilities 2012 states that:
children and young people who are admitted to a mental health facility have the right
to…access an independent advocate whose role is to protect the child or young person’s
rights.125
This right has proven ineffective in circumstances where the child needs an independent
advocate but their parents have not sought one on their behalf. In these circumstances the
treating team may be reluctant to propose an independent advocate for the child, even where
they believe it would assist, because of resistance from the parents and the difficulty in
managing their ongoing relationship with the child and the parent or guardian. The situation is
particularly problematic in cases where the views of the parents differ from the child or the
treating team, or where the parents are unable or unwilling to effectively advocate for the child.
In our view, this problem could be overcome by automatically appointing an independent
advocate or legal representative to every child on an ITO. An independent advocate, trained in
non-adversarial communication and automatically appointed, will ensure the child’s rights are
protected and eliminate any difficulties for the treating team in attempting to have an
independent third party involved.
125
Standing Council on Health, Mental Health Statement of Rights and Responsibilities (National Mental
Health Strategy, Australian Government, November 2012) 17.
60
We recommend that the treating team should be required to contact the Tribunal when a child
is placed on an ITO. The Tribunal would then be required to locate an advocate or legal
representative for the child. The Tribunal could seek advocacy or legal representation services
from community organisations such as the Mental Health Law Practice, Toowoomba Advocacy
and Support Centre (TASC) or Queensland Advocacy Incorporated (QAI). Alternatively, the
Tribunal could develop its own panel of advocates and legal representatives.
The advocate or legal representative should be appointed as soon as the ITO is made so that the
advocate can facilitate communication between the various parties at an early stage. The early
involvement of the advocate or legal representative will ensure protection of the child’s
interests including those where the ITO is revoked before the matter is considered by the
Tribunal.
It is our view that generally an advocate rather than a legal representative should be appointed.
This will be less confronting for the parents and the treating team and is more consistent with
the principles of therapeutic jurisprudence which underlie the Act. In some circumstances,
however, a legal representative may be more appropriate. For example, if the child is the subject
of an ECT application or Forensic Order.
The provision of an advocate or legal representative is consistent with international standards
which state that:
[s]pecial care should be given within the purposes of the Principles and within the
context of domestic law relating to the protection of minors to protect the rights of
minors, including, if necessary, the appointment of a personal representative other than
a family member.126
And:
the child shall in particular be provided the opportunity to be heard in any judicial and
administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural
rules of national law.127
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care, GA Res 46/119 UN GAOR, 75th mtg, UN Doc A/RES/46/119 (17 December 1991), principle 2.
127 Convention on the Rights of the Child GA Res 44/25 (20 November 1989)
<http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf> art 12(2).
126
61
Recommendation 28 – Children on a Forensic Order should be provided with an
independent legal representative.
Under the Act, forensic orders must be made where a person with a mental illness has been
charged with an offence and the Mental Health Court determines that they are temporarily unfit
for trial for the alleged offence.128 Forensic orders may also be made in circumstances where the
Mental Health Court determines the person was of unsound mind when the alleged offence was
committed, or that they are permanently unfit for trial.129 Once a forensic order has been made,
patients may be detained involuntarily for treatment or care.130
In our view, due to the particular vulnerability of children and the serious consequences which
may result from criminal charges means that children subject to a forensic order should be
automatically provided with an independent legal representative. A legal representative is more
appropriate than an independent advocate in these circumstances due to the criminal nature of
the offence and the significant legal implications that may arise.
We understand that this recommendation is consistent with the submissions made by QAI and
YAC.
Recommendation 29 – The Tribunal should be required to conduct a hearing for child
patients under an ITO within seven days after the order is made and afterwards at
intervals of not more than three months.
The Act requires the Tribunal to review the application of the treatment criteria to patients
under an ITO within six weeks after the order is made and afterwards at intervals of not more
than six months.131The Tribunal must review the detention of children in a high security
treatment unit within seven days after the detention starts and afterwards at intervals of not
more than three months.132
Given the particular vulnerability of children, we recommend that the Tribunal review the ITO
status of child patients:

within seven days of the order being made;

at intervals of not more than three months; and
Mental Health Act 2000 (Qld) s 288(3).
Ibid s 288(2).
130 Ibid s 288(2)-(3).
131 Ibid s 187.
132 Ibid s 194.
128
129
62

within three days of an application being made by the child or a person acting on the
child’s behalf.
The Victorian Government proposes the following amendment to the Victorian Mental Health
Act 1986:
[a] young person may only be placed on a treatment order for a maximum of 3 months.
However the tribunal will be able to make further orders if the criteria still apply. 133
Recommendation 30 – ECT should only be used on children where it is in the child’s best
interests and where a second opinion from a Child Psychiatrist has approved the
treatment.
Research suggests the effectiveness and side effects of the use of ECT on children is similar to
that of adults.134 However, it appears there is minimal empirical data on the issue so we
recommend a cautionary approach. Furthermore, even if the evidence were more definitive,
ECT is perceived by the community as particularly intrusive and more invasive than drug
therapy and therefore additional safeguards should apply to this treatment when it is used on
children. In addition, the use of ECT can have significant adverse effects for some people
including memory loss.135
The restrictions the Act places on the use of ECT are the same for both adults and children. ECT
is permitted where a voluntary patient does not object and has given informed consent. ECT is
permitted on involuntary patients where informed consent or Tribunal approval has been
given.136 In our view, a psychiatrist specialising in the treatment of children should be required
to provide a second opinion approving the treatment. We understand that it is the general
practice to obtain a second opinion in such circumstances but in our view, the requirement
should be made explicit.
These recommendations are consistent with the MI Principles, which state that:
[a] major medical or surgical procedure may be carried out on a person with mental
illness only where it is permitted by domestic law, where it is considered that it would
Above n 40.
Department of Health, Appendix 5 – Royal Australian and New Zealand College of Psychiatrists Clinical
Memorandum # 12 Electroconvulsive Therapy (revised 2006) (Victorian Government, January 2009)
<http://www.health.vic.gov.au/mentalhealth/ect/ect.pdf>.
135 Ibid.
136 Mental Health Act 2000 (Qld) s 139.
133
134
63
best serve the health needs of the patient and where the patient gives informed
consent, except that, where the patient is unable to give informed consent, the
procedure shall be authorized only after independent review. 137
Recommendation 31 – Psychosurgery should only be used on children where it is in the
child’s best interests and where a second opinion from a Child Psychiatrist has approved
the treatment.
The use of psychosurgery is irreversible, extremely intrusive and can result in significant
adverse effects. As such, it should only be used in highly regulated circumstances. The Act
already requires informed consent of the patient and approval of the Tribunal.138 Additional
safeguards should be mandated when psychosurgery is used as a treatment on children.
Psychosurgery should only be performed on children where a second opinion from a Child
Psychiatrist has approved the treatment and it is in the child’s best interests.
The MI Principles emphasise the importance of only performing psychosurgery when it is in the
best interests of the patient:
[p]sychosurgery and other intrusive and irreversible treatments for mental illness shall
never be carried out on a patient who is an involuntary patient in a mental health
facility and, to the extent that domestic law permits them to be carried out, they may be
carried out on any other patient only where the patient has given informed consent and
an independent external body has satisfied itself that there is genuine informed consent
and that the treatment best serves the health needs of the patient. 139
Recommendation 32 – The Act should be amended to provide that the following
principles apply specifically to the assessment and treatment of children:
a) the best interests of the child are a primary consideration;
b) the views of the child are to be considered;
c) the views of the parents or guardian of the child are to be considered;
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care, GA Res 46/119 UN GAOR, 75th mtg, UN Doc A/RES/46/119 (17 December 1991), principle 11
(13).
138 Mental Health Act 2000 (Qld) s 161.
139 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care, GA Res 46/119 UN GAOR, 75th mtg, UN Doc A/RES/46/119 (17 December 1991), principle 11
(14).
137
64
d) children should be treated by a Child Psychiatrist where this is reasonably practicable;
and
e) children being treated as in-patients should be treated in a separate facility to adult
patients where this is reasonably practicable.
The purpose of the Act is to provide for the involuntary assessment and treatment, and
protection of persons with mental illnesses.140 Persons are specified as including both adults
and minors.141 The Act does not contain a separate section for the treatment of children with
mental illnesses. However, there are sections within the legislation that specifically mention
minors, young persons and children.
We recommend that the Act contain a section relating specifically to the treatment of children.
This section should reflect the vulnerability of children and accordingly incorporate adequate
safeguards for their protection.
The WA Bill provides a specific part for children with a mental illness.142 This part includes
sections relating to the best interests of the child,143 the child’s wishes,144 the views of the child’s
parent or guardian145 and the segregation of children from adult patients.146
a) The best interests of the child are a primary consideration.
The best interests of the child should be a primary consideration when making decisions under
the Act. This recommendation is consistent with international standards including the United
Nations Convention on the Rights of the Child (CRC) which provides that:
[i]n all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration. 147
The United Nations Convention on Rights of Persons with Disabilities (CRPD) makes a similar
provision:
Mental Health Act 2000 (Qld) s 4.
Ibid.
142 Mental Health Bill 2012 (WA) pt 17.
143 Ibid s 282.
144 Ibid s 283.
145 Ibid s 284.
146 Ibid s 286.
147 United Nations Convention on the Rights of the Child, GA Res 44/25 (20 November 1989)
<http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf> art 3(1).
140
141
65
[i]n all actions concerning children with disabilities, the best interests of the child shall
be a primary consideration.148
Western Australia also recommends that the best interests of the child are to be a primary
consideration:
[i]n performing a function under this Act in relation to a child, a person or body must
have regard to what is in the best interests of the child as a primary consideration. 149
We recommend the adoption of a similar provision.
b) The views of the child are to be considered.
Children should have a right to freely express their views in relation to matters capable of
affecting their life. Further, these views should be explicitly taken into account in any decisions
made under the Act regarding the care and treatment of the child.
South Australia requires that treatment and care plans are provided through consultation with
patients, including where the patient is a child.150 Western Australia also recommends that the
child’s wishes be taken into account:
In performing a function under this Act in relation to a child, a person or body must
have regard to the child’s wishes, to the extent that it is practicable to ascertain those
wishes.151
On the international level, the CRC and CRPD both make provision for the views of the child to
be expressed and considered:
States Parties shall assure to the child who is capable of forming his or her own views
the right to express those views freely in all matters affecting the child, the views of the
child being given due weight in accordance with the age and maturity of the child. 152
States Parties shall ensure that children with disabilities have the right to express their
views freely on all matters affecting them, their views being given due weight in
United National Convention on Rights of Persons with Disabilities, UN doc A Res 61/106 (3 May 2008)
art 7(2).<http://www.un.org/disabilities/convention/conventionfull.shtml> .
149 Mental Health Bill 2012 (WA) s 282.
150 Mental Health Act 2009 (SA) s 7(1)(c).
151 Mental Health Bill 2012 (WA) s 283.
152 Convention on the Rights of the Child GA Res 44/25 (20 November 1989) art 12(1)
<http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf> .
148
66
accordance with their age and maturity, on an equal basis with other children, and to be
provided with disability and age-appropriate assistance to realize that right.153
c) The views of the parents or guardian of the child are to be considered.
The parents and guardians of children with a mental illness have an intimate knowledge and
understanding of their child’s needs and interests. The relationship between the parent and
child, even in circumstances where there is disharmony or dysfunction, is the primary
relationship and inclusion of the parents is critical to the child’s recovery. Accordingly, the
views of the parents or guardian of a child should be considered when making decisions under
the Act. We understand that this generally happens in practice but there is value in stating the
requirement explicitly in the Act.
The Mental Health Act 2009 (SA) recommends consultation with family members and other
carers in the provision of services.154 Western Australia also recommends that the views of the
child’s parent or guardian be considered.155
The CRC also provides that:
States Parties shall respect the responsibilities, rights and duties of parents or, where
applicable, the members of the extended family or community as provided for by local
custom, legal guardians or other persons legally responsible for the child, to provide, in
a manner consistent with the evolving capacities of the child, appropriate direction and
guidance in the exercise by the child of the rights recognized in the present
Convention.156
d) Children should be treated by a Child Psychiatrist where this is reasonably
practicable.
The developing capacities and vulnerability of children means that they have special needs
which should be recognised and catered for under the Act. Children should be treated in
accordance with their developmental age and maturity. This is best achieved by the input of
Child Psychiatrists who have specialist knowledge in the treatment of children with a mental
illness.
United National Convention on Rights of Persons with Disabilities, UN doc A Res 61/106 (3 May 2008)
art 7(3)<http://www.un.org/disabilities/convention/conventionfull.shtml> .
154 Mental Health Act 2009 (SA) s 7(1)(c).
155 Mental Health Bill 2012 (WA) s 284.
156 Convention on the Rights of the Child GA Res 44/25 (20 November 1989) art
5<http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf>.
153
67
e) Children being treated as in-patients should be treated in a separate facility to adult
patients where this is reasonably practicable.
Children are particularly vulnerable and at a higher risk of suffering physical or sexual abuse
when being treated as in-patients. Accordingly, where possible, children should be treated in a
separate facility to adults to better protect them from abuse. This should also facilitate the
provision of treatment which gives adequate regard to the child’s age and maturity.
The Mental Health Act 2009 (SA) provides in section 7(e) that:
[c]hildren and young people should be cared for and treated separately from other
patients as necessary to enable the care and treatment to be tailored to their different
developmental stages.
The WA Bill157 and Tasmanian Bill158 also propose that children are treated separately from
adults so as to better provide for their special needs.
157
158
Mental Health Bill 2012 (WA) s 286.
Mental Health Bill 2012 (Tas) s 63(e)(i).
68
Complaint Management Systems and
Guidelines
Recommendations:
33. An independent specialist mental health complaints body should be established
under the Act with broad powers to perform its statutory functions.
34. The Act should require the Director to publish detailed guidelines.
35. The Director should be responsible for monitoring compliance with the guidelines.
The Tribunal should have the power to consider whether the guidelines have been
complied with.
People with mental illness are among the most vulnerable and disadvantaged in our community
and there is a sorry history of human rights abuses in the area of mental health. Within Australia
alone, the Burdekin, Ward 10B and Chelmsford Inquiries have uncovered widespread abuse of
mentally ill people. In addition to being an important safeguard to address and minimise the
risk of abuse, we agree with the view of the Victorian Mental Health Complaints Review Project
that:
[r]obust complaints management systems in mental health services help safeguard the
rights of people who are mentally ill and are a fundamental feature of most modern
mental health laws. They also provide an opportunity for organisations to improve the
quality of services, reduce the risk of complaints and support consumer and carer
engagement and participation. Effective complaints management systems demonstrate a
commitment to listening to, and including, the voices of consumers and carers in the
review and improvement of mental health services. 159
This is supported at the international level in the MI Principles.160 Principle 21 states that
‘[e]very patient and former patient shall have the right to make a complaint through procedures
as specified by domestic law.’ Principle 22 provides that:
159Department
of Health, ‘Mental Health Complaints Review Project’ (Research Report, Victorian
Government, 2009) 1.
160 United Nations, Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care, GA Res 46/119, 17 December 1991.
69
States shall ensure that appropriate mechanisms are in force to promote compliance with
the present Principles, for the inspection of mental health facilities, for the submission,
investigation and resolution of complaints and for the institution of appropriate
disciplinary or judicial proceedings for professional misconduct or violation of the rights
of a patient.
In our view, the current Act does not adequately protect the rights of involuntary patients
through a robust complaint management system.
Recommendation 33 – A specialist mental health complaints body should be established
under the Act with broad powers to perform its statutory functions.
Currently, consumers with complaints are encouraged to make complaints directly to their
mental health service, each of which has its own complaints handling procedure. While the
service provider should be encouraged to respond to complaints directly, in our experience
many people are reluctant to complain directly for fear of reprisals from their treating team.
Where people have made complaints to their mental health service, they are often unhappy with
either the process (too bureaucratic) or the outcomes. Complaints may concern clinical issues,
service policies or practices.
Where complaints concern clinical issues, systemic issues or potential breaches of the Act, two
bodies currently receive the complaints: the Director and the Health Quality Complaints
Commission (HQCC). There are general shortcomings with the overall system that apply equally
to both bodies, including that:

people on ITOs are not always given accurate information about their right to complain,
who to complain to and what the process will involve; and

as a result, many people on ITOs are not aware that these bodies exist or that they can
make complaints.
Specific problems with the complaints management system through both the Director and the
HQCC are outlined below.
Director of Mental Health
Under the current Act, the Director has broad functions that are listed in section 489(1):
70
(a) to the extent that it is reasonably practicable, ensuring the protection of the rights of
involuntary patients under this Act while balancing their rights with the rights of other
persons;
(b) to the extent that it is reasonably practicable, ensuring the involuntary admission,
assessment, treatment and care of persons complies with this Act;
(c) facilitating the proper and efficient administration of this Act;
(ca) monitoring and auditing compliance with this Act;
(d) promoting community awareness and understanding of the administration of this Act;
(e) advising and reporting to the Minister on any matter relating to the administration of
this Act—
(i) on the director's own initiative; or
(ii) on the request of the Minister if the matter is in the public interest.
To this end, the Act confers powers on the Director to do all things necessary or convenient to
be done in performing the Director’s functions.161
The Act confers responsibility for monitoring compliance with the Act and all necessary powers
on the Director, but does not explicitly confer responsibility for complaints management on any
body or person.
In our view, the Director is not able to ensure a robust complaints management system because:

The Director is not obliged to investigate complaints or take any particular steps in
response to a complaint. No guidance is available as to what types of complaints will be
investigated: the Annual Report of the Director of Mental Health 2011-2012 only states
that ‘not all complaints or issues will trigger an investigation’.162

The Director is not perceived by consumers as independent as the office of the Director
is part of Queensland Health;

There is no process currently in place for people to make complaints to the Director.
The Director’s website does not contain any information on how to make a complaint,
and there is no explanation of:
161
162
o
what process the Director will follow upon receiving the complaint;
o
what (if any) powers the Director has to investigate the complaint; or
Mental Health Act 2000 (Qld) s 490.
Above n 9, 35.
71
o
what remedies are available to the complainant if their complaint is
substantiated.

The Director’s powers of investigation are rarely used: in 2011-2012, only three
investigations were undertaken.163 This figure is particularly low in comparison to the
number of people who are on ITOs: in the 2011-2012 financial year alone, 6125 ITOs
were issued in Queensland.164

Neither the results of these investigations, or the Director’s audits of Mental Health
Services, are made available to the public.
Health Quality Complaints Commission
We are aware that the HQCC is soon to be replaced by a Health Care Ombudsman. We will not
retread the ground that has been covered in other reviews of the HQCC. However, there are
flaws with the HQCC model that are specific to mental health, including:

the inflexible 12-month time frame for making complaints, which impacts particularly
on mentally ill people who may not have the capacity to make a complaint until a
significant time after the event;

lack of specialist knowledge of the issues associated with mental illness, involuntary
treatment and the Act; and

inability to take disciplinary action against a health professional.
Further, in the 2011-2012 financial year, only 64 per cent of HQCC’s clients were satisfied with
the complaint service and only 54 per cent were satisfied with the complaint outcome.165
It is our view that a specialist complaints commission to handle complaints relating to
mental illness and involuntary treatment should be established under the Act.
The complaints commission should be given the powers listed in section 490, to perform the
functions listed in section 489, which should be removed from the Director. The Director will be
responsible for other functions (see below).
The commission should be independent of Queensland Health, and given adequate powers to
perform its statutory functions such as investigation and referral powers. The commission
Ibid.
Ibid 19
165 Health Quality Complaints Commission, Annual Report 2011-2012, 12.
163
164
72
should be responsible for establishing an accessible and effective complaints management
system, with explicit focus on enabling access for people with mental illness. For example, the
Act should specify that it is the duty of commission staff to assist a person to make a complaint if
the person requests assistance to do so. This duty already applies in New South Wales under
section 9(3) of the Health Care Complaints Act 1993 (NSW).
Finally, the commission should have powers to refer practitioners to registration boards for
disciplinary action.
The establishment of a specialist mental health complaint body was one of the key
recommendations of the review of the Mental Health Act 1986 (Vic). The review recommended
the establishment of a Mental Health Complaints Commissioner, with powers to receive,
conciliate, investigate and resolve complaints about public sector mental health service
providers.166
It is our view that the commission should have a statutory basis. This is because the complaints
mechanism is so critical in the context of involuntary treatment that it should not be a matter of
policy and discretion.
The Mental Health Commission (MHC) has recently been established in Queensland. We
understand that the MHC is an independent statutory authority. In our view, the new
complaints management system must be independent and specialist. This could be achieved
through either:

establishing a specialist complaints unit within the MHC. This would require amending
the Mental Health Commission Act 2013 (Qld) to include the statutory complaints
management framework outlined above; or

establishing a separate complaints management body with the statutory framework
outlined above.
Recommendation 34 – The Act should require the Director to publish detailed guidelines.
Under the Act, the Director can issue policies and practice guidelines about treatment and care
of patients in mental health services.167 At the time of writing this submission the Director has
166
167
Above n 40.
Mental Health Act 2000 (Qld) s 493A, 309A.
73
published the Mental Health Act 2000 Resource Guide (“the Resource Guide”).168 The Resource
Guide is explanatory in nature and summarises the legislation for mental health services. It does
not provide mental health practitioners with guidelines as to how to implement the Act and
standards that should be followed, but merely explains certain provisions of the Act.
We submit that it is necessary for the Director to publish detailed guidelines for the treatment
of care to be provided by mental health services. This should be mandatory and similar to the
WA Bill.169 Section 513(1) of the WA Bill states that the Chief Psychiatrist must publish
guidelines on various purposes including:
(a) making decisions about whether or not a person is in need of an inpatient treatment
order or a community treatment order;
(b) making decisions under section 25(3)(a) about whether or not a place that is not an
authorised hospital is an appropriate place to conduct an examination;
(c) ensuring as far as practicable the independence of psychiatrists from whom further
opinions referred to in section 118(5) or 174(2) are obtained;
(d) making decisions under section 175(2) about whether or not to comply with requests
made under section 174 for additional opinions;
(e) the preparation, review and revision of treatment, support and discharge plans; and
(f) ensuring compliance with this Act by mental health services.
Recommendation 45 – The Director should be responsible for monitoring compliance
with the guidelines. The Tribunal should be required to consider whether the guidelines
have been complied with.
We further recommend that the Director be responsible for monitoring compliance with the
guidelines. Similar provision has been made in section 513(2) of the WA Bill which requires the
Chief Psychiatrist to monitor compliance of published standards for the treatment and care
provided by mental health services.
Finally, we recommend that the Tribunal should have the power to consider whether the
guidelines have been complied with.
168
169
Above n 60.
Mental Health Act 2000 (Qld) s 493A.
74
Advance Health Directives
Recommendations:
36. Where an advance health directive is lawfully made, treatment under the Act must be
given in accordance with the advance directive except:
a) in an emergency;
b) where compliance with the directive is likely to result in the person causing
serious harm to themselves or another person; or
c) where there have been advances in medical science to the extent that the
person, if they had known of the change in circumstances, would have
considered the terms of the direction inappropriate.
37. Where an advance health directive is not complied with, the treatment must be
justified, proportionate and in the person’s best interests.
38. Where an advance health directive is not complied with, the person must be given
written reasons for the decision.
Background
An advance health directive is a document in which a person gives directions about health
matters.170 A person may use a directive to consent to or refuse future health care,171 or require
a life-sustaining measure to be withheld or withdrawn in certain circumstances.172
In Queensland, an advance health directive can only be made when the person has legal
capacity. A witness173 must certify that the person making the directive appeared to understand
the nature and likely effects of each direction stated in the directive. 174
The status of advance health directives in the context of mental illness is unclear. The treating
team is required to provide a treatment plan for a person being treated involuntarily under the
Powers of Attorney Act 1998 (Qld) s 35.
A person cannot make an advance health directive in relation to ECT or psychosurgery. See Powers of
Attorney Act 1998 (Qld) s 35, sch 2, ss 6-7.
172 Ibid s 35(2)(a)-(b).
173 A justice of the peace, lawyer, commissioner for declarations or notary: Powers of Attorney Act 1998
(Qld) s31(1).
174 Ibid s42.
170
171
75
Act. Section 124(4) of the Act requires that the treatment plan take any advance health directive
into account. The Act does not require the treating team to follow the directive. The treating
team therefore has considerable discretion in its treatment decisions and how any directive is
taken into account.
Meaningful participation in treatment decisions is a central tenet to the recovery framework
underlying mental health policy. This is reflected in the Australian National Standards for
Mental Health Services (“the Standards”) and the Act.
The Standards state that:
consumers should be involved in all decisions regarding their treatment and care, and
as far as possible, the opportunity to choose their treatment and setting.175
The Act states that:
to the greatest extent practicable, a person is to be encouraged to take part in making
decisions affecting the person’s life, especially decisions about treatment. 176
Advance health directives are an important mechanism to give effect to this principle, and allow
people with mental illness to meaningfully participate in treatment decisions.
Advance health directives enable people with a mental illness to express their preferences
about a wide range of important issues and to make important decisions regarding their
treatment at a time when they have capacity to make those decisions. Further, as part of a
relapse prevention plan, directives can assist people to assess all aspects of their treatment and
identify the role that family or carers will play if they lose capacity to make treatment decisions
in the future.177
Recommendation 36 – Where an advance health directive is lawfully made, treatment
must be given in accordance with the directive, except:
a) in an emergency;
Above n 52.
Mental Health Act 2000 (Qld) s 8(1) (b).
177 Australian Health Ministers Advisory Council, Carers Identified? (Mental Health Standing Committee)
<http://www.health.gov.au/internet/mhsc/publishing.nsf/Content/pub-sqps-carers-toc~pub-sqpscarers-toc-3~pub-sqps-carers-toc-3-5>.
175
176
76
b) where compliance with the directive is likely to result in the person causing serious
harm to themselves or another person; or
c) where there have been advances in medical science to the extent that the person, if
they had known of the change in circumstances, would have considered the terms of
the direction inappropriate.
When a person who has made an advance health directive subsequently loses capacity, the
Powers of Attorney Act 1998 (Qld) (“the POA Act”) states that the directive is not revoked.178
However, health care providers are not required to follow the directive if:

they have reasonable grounds to believe the directive is uncertain;

they have reasonable grounds to believe the directive is inconsistent with good medical
practice; or

circumstances, including advances in medical science, have changed to the extent that
the adult, if he or she had known of the change in circumstances, would have considered
that the terms of the direction are inappropriate.179
However, section 38(2) of the POA Act provides that the Mental Health Act 2000 (Qld) prevails
to the extent of any inconsistency. Therefore when a person who has made an advance health
directive is subsequently placed on an ITO, the legal status of their directive becomes subject to
the Act.
Section 124(4) of the Act only requires that the treatment plan take the directive into account.
The Act does not require that the treating team follow the directive. In our view, this section
does not give proper weight to advanced health directives as an expression of a person’s
treatment preferences.
Since the Act provides for involuntary treatment where a person does not have legal capacity or
has unreasonably refused treatment, an advanced health directive made at a time when the
person has capacity is often the only mechanism by which a person with a mental illness can
express their treatment preferences.
The Act provides that people with mental illness are entitled to the same human rights
protections as other people.180 To genuinely give effect to that principle, advance health
178
179
Powers of Attorney Act 1998 (Qld) s 35(4).
Ibid s 103. ‘Good medical practice’ is defined in sch 2, s 5B by reference to medical and ethical
practices and standards of the medical profession in Australia.
77
directives made by people with a mental illness should be given the same respect as the
treatment preferences of any other person in the community.
For people who are not under ITOs, their legal rights regarding refusal of treatment and
advance directives is covered by the general law and the POA Act. Under the general law, every
adult has the right to accept or refuse recommended health care even if that refusal is irrational
and would lead to negative health consequences or even death for that person:
[p]rima facie every adult has the right and capacity to decide whether or not he [or she] will
accept medical treatment, even if a refusal may risk permanent injury to his [or her] health or
even lead to premature death. Furthermore, it matters not whether the reasons for the refusal
were rational or irrational, unknown or even non-existent.181
Under the POA Act, advance directives must be followed by health practitioners except in the
circumstances outlined above.
A person with a mental illness is not afforded the same protections under the Act. This is
because section 124(4) of the Act appears to allow the treating team to not comply with the
advanced health directives of involuntary patients in a wider range of circumstances than apply
to the general public.
In our view this is a breach of human rights and a denial of equal recognition before the law. It is
a contravention of Article 12 of the CRPD.182 It is therefore our view that the Act should be
changed to give more weight to advance health directives of people who are subsequently
placed on ITOs.
We recommend that section 12 (4) be amended to provide that all treatment decisions must be
made in accordance with a person’s advance directive except:
 in an emergency;
 when, because of the symptoms of the person’s illness, he or she is likely to cause
serious harm to themselves or someone else; or
 where there have been advances in medical science to the extent that the person, if they
had known of the change in circumstances, would have considered the terms of the
direction inappropriate.
Mental Health Act 2000 (Qld) s 8(1) (a).
Re T (Adult: Refusal of Treatment) [1993] Fam 95 (Lord Donaldson).
182 CRPD, UN Doc A/RES/61/106 art 12.
180
181
78
This approach is supported in other jurisdictions including New South Wales, Victoria and
Canada.
In New South Wales, the Supreme Court has held that the law will uphold an advance health
directive where a person has lost capacity to consent to or refuse treatment if the person had
capacity to make those decisions when the advance health directive was made.183 A similar
finding was made in Canada when the Ontario Court of Appeal upheld two patients’ advance
decisions to refuse future courses of anti-psychotic drugs, which were made when the patients
had capacity.184
According to the summary of proposed reforms of the Mental Health Act 1986 (Vic), advance
statements form part of the Victorian government’s strategy to establish a recovery-based
framework for treatment and embed supported decision making.185
Recommendation 37 – Where an advance health directive is not complied with, the
treatment must be justified, proportionate and in the person’s best interests.
We recognise that in an emergency it may be impracticable for health professionals to locate a
person’s advance health directive. However, we agree with the view of the Victorian Mental
Health Legal Centre in their submission to the review of the Victorian Mental Health Act.
Namely, that the Act should stipulate that where an advance health directive is overridden in an
emergency, the treatment must be medically justified, proportionate and in the person’s best
interests.186
Recommendation 38 – Where an advance health directive is not complied with, the
person must be given written reasons for the decision.
In our view, if a person’s advance health directive is not complied with, the person should be
given written reasons for that decision. This requirement will help ensure that health
professionals comply with advance health directives to the greatest extent possible. It will also
enable people to understand the reasons why their directions were not complied with.
Hunter and New England Area Health Service v A [2009] NSWSC 761.
Fleming v Reid (1991) 82 DLR (4th) 298.
185 Above n 40.
186 Mental Health Legal Centre Inc, Review of the Mental Health Act 1986: Submissions of the Mental Health
Legal Centre Inc (February 2009) 63
<http://www.communitylaw.org.au/mhlc/cb_pages/images/MHLCMental_Health_Act_Review.pdf> .
183
184
79
We note that the POA Act does not provide for the lodgement of advance health directives with
a central agency. We agree with the Queensland Law Reform Commission’s suggestion that
directives should be able to be lodged with the Australian Government’s e-Health National
Healthcare Identifier Service.187 Currently, only the details of the custodian of a person’s
Advance Health Directive can be recorded on the e-Health service.188
Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws (Report No 67
2010) 57.
188 Australian Government Department of Health and Ageing, Potential Uses (2012) The Personally
Controlled eHealth Record System <http://publiclearning.ehealth.gov.au/hcp/how-do-we-useit/potential-uses.>.
187
80
Miscellaneous Recommendations
Recommendations:
39. The Act should require the patient’s clinical report to be given to the patient at least
seven days before a Tribunal hearing.
40. The Act should stipulate that people subject to ITOs have the right to access their
medical records prior to a Tribunal hearing.
41. The Director should be required to publish detailed guidelines on the assessment of
risk.
Recommendation 39 - The Act should require the patient’s clinical report to be given to
the patient at least seven days before a Tribunal hearing.
The Act sets out notice requirements for Tribunal hearings.189 A consumer must be given
written notice seven days before a hearing takes place unless the consumer agrees to a period of
less than seven days.190
The Mental Health Review Tribunal Rule 2009 (Qld) (“the Rule”) outlines the requirements
associated with the provision of the clinical report prior to the Tribunal hearing. The Rule
requires that a copy of the clinical report be given to the executive officer and the relevant
patient at least seven days before the hearing.191 Alternatively, the treating psychiatrist is
allowed to make the relevant patient aware of the clinical report’s contents.192
In our experience the timeframe contained in this rule is rarely complied with. The clinical
report is often handed to the patient one or two days before the hearing or sometimes even on
the day. This is supported by the Tribunal’s Annual Report which notes that clinical reports are
received on time in only 38.1 per cent of cases.193
In order for the patient to properly prepare for the Tribunal hearing, the patient must have
sufficient time to review and respond to the information contained in the clinical report. We
submit that this rule be incorporated in the Act.
Mental Health Act 2000 (Qld) s 189, 196, 202, 211.
Ibid s 189(2)(b)(ii), 211(2)(b)(ii).
191 Mental Health Tribunal Review Rule 2009 (Qld) r 3.
192 Ibid r 3(4)(b).
193 Above n 9 15.
189
190
81
Currently there is no consequence for non-compliance with the rule. We appreciate that given
the workloads of clinicians and the demands on mental health services, there can be many
legitimate reasons for non-compliance. We do not recommend that the Act be amended to
provide a penalty for non-compliance for this reason. However, in our view incorporating the
requirement in the Act rather than in the Rules will give the requirement greater status.
We regard it as the Director’s responsibility to ensure compliance with the requirement and to
implement systems to monitor and ensure compliance.
Recommendation 40 - The Act should stipulate that people subject to ITOs have the right
to access their medical records prior to a Tribunal hearing.
Patient participation in treatment decisions is an essential part of recovery framework. This is
reflected in the Australian National Standards for Mental Health:194
Standard 1.10
The MHS upholds the right of the consumer to be involved in all aspects of their
treatment, care and recovery planning.
Standard 6.7
Consumers are partners in the management of all aspects of their treatment, care and
recovery planning.
Standard 6.9
Consumers are provided with current and accurate information on the care being
delivered.
Standard 6.14
The right of the consumer to have access to their own health records is recognised in
accordance with relevant Commonwealth and state / territory legislation /guidelines.
In Queensland, patients or their representatives are rarely given access to the clinical file which
can make it difficult to properly prepare for a hearing. Patients are generally only able to access
their medical records through Right to Information applications. This is a time consuming
process, and patients generally will not receive their records until well after the Tribunal
hearing has passed.
194
Above n 52.
82
We recommend that the Act specifically provide for patients to have a right of access to their
medical records prior to a Tribunal hearing.
The Mental Health Act 2007 (NSW) already provides for this recommendation in section 156:
(1) A patient or
person
having
any
matter
before
the Tribunal is,
unless
the Tribunal otherwise determines, entitled to inspect or otherwise have access to
any medical records in the possession of any person relating to the patient or
person.
(2) A representative of a person having any matter before the Tribunal is entitled, at
any time before or during the consideration of that matter by the Tribunal, to
inspect or otherwise have access to any medical records in the possession of any
person relating to the first mentioned person.
(3) Subject to any order or direction of the Tribunal, in relation to an inspection under
subsection of, or other access under that subsection to, any medical record relating
to a person:
(a) if a medical practitioner warns the representative of the person that it may
be harmful to communicate to the person, or any other person, specified
information contained in those medical records, the representative is to have
full and proper regard to that warning, and
(b) the representative is not obliged to disclose to the person any information
obtained by virtue of the inspection or other access.
Recommendation 41 – The Director should be required to publish detailed guidelines on
the assessment of risk.
Under the Act, the criterion of ‘risk’ is a factor in both the assessment and treatment criteria. 195
The assessment criteria require that “there is a risk that the person may – cause harm to himself
or herself or someone else; or suffer serious mental or physical deterioration.”196
The treatment criteria are similar, but require an imminent risk of harm.197
The Mental Health Act 2000 Resource Guide (“the Resource Guide”) provides further directions
on assessing risk. The Resource Guide states that harm may include risk to “[a person’s] social
Mental Health Act 2000 (Qld) ss 13-14
Ibid s 13(1)(d).
197 Ibid s 14(1)(d).
195
196
83
standing and reputation, losing their employment, being subject to criminal charges, suffering
significant financial losses, etc,”198 or “adverse financial or social impacts, particularly where
these are of a significant nature.”199
In our experience, the assessment of risk in clinical reports can be vague, general and often
based on hearsay from third parties. The clinical report may simply say “risk to social standing”
or “risk to reputation” without giving adequate consideration to the specific risk for the
particular person, the likelihood of the risk eventuating or the consequences for the person or
the community if the risk did occur. Certainly people with mental illness may need to be
protected against risks, as does the community, but they are also entitled to the dignity of risk,
of trying and failing if the consequences for them or the community are not serious. The ITO
provisions are not a “just in case” power and in our view, where a person is being treated
against their will with anti-psychotic medication, there needs to much greater attention to the
specific risks that are likely for that patient.
Whilst the assessment of risk is a clinical determination, we recommend that the Act specifically
require the Director to publish more detailed guidelines on the proper assessment of risk. The
WA Bill 2012 has adopted a similar provision:
[t]he Chief Psychiatrist must publish guidelines for each of these purposes — making decisions
about whether or not a person is in need of an inpatient treatment order or a community
treatment order.200
Above n 60, 3-8.
Ibid 4-9.
200 s 513(1)(a).
198
199
84
Glossary
TERM
DEFINITION
Assessment criteria
ATI
CRC
CRPD
DAMHS
ECT
EEO
Initial ITO
As set out in section 13 of the Mental Health Act 2000 (Qld)
Advocacy Tasmania Inc
United Nations Convention on the Rights of the Child
United Nations Convention on Rights of Persons with Disabilities
Director of Area Mental Health Services
Electroconvulsive therapy
Emergency Examination Order
Involuntary Treatment Order made by a psychiatrist pursuant to
Recommendations 8 and 9
Involuntary Treatment Order
Health Quality and Complaints Commission
Justices Examination Order
Justice of the Peace
Medical Benefits Schedule
Mental Health Commission
Mental Health Law Practice
Mental Health Review Tribunal
Principles for the Protection of Persons with Mental Illness and for
the Improvement of Mental Health Care
New South Wales
Northern Territory
Consumer, Carer and Family Participation Framework
Powers of Attorney Act 1989 (Qld)
Queensland Public Interest Law Clearing House
Second Opinion Appointed Doctor
Toowoomba Advocacy and Support Centre
Mental Health Act 2000 (Qld)
Queensland Health Public Patients’ Charter
Director of Mental Health
Mental Health Act 2007 (NSW)
Mental Health (Compulsory Assessment and Treatment) Act 1992
(NZ)
Queensland Advocacy Inc
The Mental Health Act 2000 (Qld) Resource Guide
Mental Health Review Tribunal Rule 2009
Mental Health (Care and Treatment) (Scotland) Act 2003
Australian National Standards for Mental Health Services
Mental Health (Care and Treatment) Act 1994 (Tas)
Mental Health Bill 2012 (Tas)
Mental Health Review Tribunal
Mental Health Act 1983 (UK)
Mental Health Act 1986 (Vic)
Mental Health Bill 2012 (WA)
As set out in section 14 of the Mental Health Act 2000 (Qld)
ITO
HQCC
JEO
JP
MBS
MHC
MHLP
MHRT
MI Principles
NSW
NT
Participation Framework
POA Act
QPILCH
SOAD
TASC
The Act
The Charter
The Director
The NSW Act
The NZ Act
QAI
The Resource Guide
The Rule
The Scottish Act
The Standards
The Tasmanian Act
The Tasmanian Bill
The Tribunal
The UK Act
The Victorian Act
The WA Bill
Treatment criteria
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