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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] 2 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 5 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). 7 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 85