Changes to theMental Health Act (Qld)
David Manwaring, Principal SolicitorTony McCarthy, Solicitor, Mental Health Legal ServiceQueensland Advocacy Inc.31 May 2016
This PowerPoint Presentation containsgeneralinformation.The information is not legal advice andshould not be treated as such.
Commencement and implementationInvoluntary examination and assessmentInvoluntary treatment‘Less restrictive way’Forensic Orders and Treatment Support OrdersMagistrates’ PowersPsychiatrist ReportsLegal RepresentationPatient Rights
Mental Health Act 2016(Qld) passed 18 Feb 2016Commencement date not set – Dept. of Health aiming for commencement in November 2016MHA Implementation Team developing resources and training – available on Qld Health websiteChief Psychiatrist also developing number of policies under the MHA
The Act purportedly strengthens patients rights.***Critical right is persons with capacity decide whether or not to have treatment.Capacitybased criteria to be placed on a Treatment AuthorityPresumption of capacityPromotes supported decision makingSo if able to demonstrate understanding through assistance of another - capacityMore emphasis on Advanced Health DirectivesPerson treated under the AHD if possible rather than involuntary
SupportPersons+ Nominated Support Persons – up to 2Notices/information to be given to nominated support person, personal guardian or attorneyRight to second opinionMay be requested by person, support or nominated support person;Only after complaints process has beenexhausted (CP Policy).Independent Patient Rights Advisers:To advise patients and support persons on rights/responsibilities;Independent from Mental Health Service.
Treatment Authority must not be made if there is a ‘less restrictive way’ – this includes:If person is minor, parent’s consent;Consent under an AHD (must consent to treatment that is reasonably necessary for person’s mental illness);Consent of appointed guardian, appointed attorney, or statutory health attorney.Authorised doctor must make reasonable effort to identify whether there is a less restrictive way (i.e. check health records).****
‘Less restrictive way’
Impacts of ‘less restrictive way’:Fewer safeguards (no independent review).Extent of guardian or attorney’s authority to consent to treatment and detention uncertain.Chief Psychiatrist Policy still under development.If directives under AHD not followed, doctor must explain to patient why, and record reasons in person’s health records.Difference between LESS and LEAST restrictive
Justices Examination Orders (JEO)Replaced by Examination Authorities.More safeguards (applicant must have received advice from doctor or AMHP about ‘clinical matters’;made by the MHRT).Emergency Examination Orders (EEO)Replaced by Emergency Examination Authorities – now underPublic Health Act 2005(Qld).Emergency situations where major disturbance in mental capacity due to illness, disability, injury, intoxication, etc.Authorises involuntary examination and reasonable force -> recommendation for assessment -> involuntary assessment
Involuntary Treatment Orders (ITO) replaced with Treatment AuthoritiesTreatmentauthority may be made if:Treatment criteria apply; andHas a mental illness;Does not have capacity to consent to treatment; andAbsence of treatment is likely to result inimminent seriousharm to the person or others, or in the person sufferingseriousmental or physical deterioration.There is no less restrictive way for the person to receive treatment and care for their mental illness.MHRT reviews – 4wks -> 6mths -> 6mths -> 12mths
Forensic Orders & Treatment Support Orders
If person found to be unsound of mind or unfit for trial:Forensic Order - mostly unchanged, except MHC may now impose non-revocation period up to 10 years for ‘prescribed offence’.Treatment Support Order - less restrictive option:MHC or MHRT may impose conditions, but not on amount of treatment person may receive in the community;Authorised doctors have greater discretion (i.e. regarding treatment in community);Community category by default – doctor may change to in-patient category, but must be reviewed by MHRT within 14 days;Not available for persons with ID as a sole diagnosis.Person may ‘step down’ from FO to TSO.
Legal Representation before MHRT
The MHRT must appoint a lawyer to represent a person, at no cost to the person:where person is a minor;FFT reviews;ECT applications;where AG is to be represented;other hearings prescribed by regulation.Adult with capacity may waive right to representation in writing.
Currently, where a person under an ITO/FO is charged with an offence (however serious), or who becomes subject to an ITO/FO before proceedings finalised:proceedings are suspended pending s238 report.within 28 days (although in practice significant delays).s238 process stopped if ITO/FO revoked.UnderMHA(2016):only for serious offences;available for any person under a TA/TSO/FO at time of or since the offence (not for person receiving treatment under ‘less restrictive way’) still available if TA/TSO/FO revoked duringprocess;only upon request of person, nominated support person, attorney, guardian or legalrepresentative- ChiefPsychiatrist may direct psychiatrist report in somecircumstances;within 60 days (may be extended to 90 days by Chief Psychiatrist);Once received, person, nominated support person or legal representative may make reference to MHC – Chief Psychiatrist may make reference in some circumstances.
Where person charged with a simple offence (any offence punishable on summary conviction before Magistrate):may dismiss if of unsound mind, or is unfit for trial.may adjourn if person is unfit for trial but is likely to become fit within 6 months -> may then dismiss if still unfit after 6 months.if complaint dismissed/adjourned, may refer to health service (e.g. for mental health treatment and care) or relevant agency (e.g. DSQ, NDIS).make an Examination Order:If person has, or may have mental illness;Requires person to present, or be taken to mental health service for involuntary examination -> may result in TA;Doctor must prepare examination report -> may be used in current or ongoing proceedings.to be supported by expanded Court Liaison Service
For more information…
Refer to:MHA Implementation website –www.health.qld.gov.au/mental-health/actSubscribe for updates from MHA Implementation team – [email protected]
Contact details:Queensland Advocacy Incorporated (QAI)Phone: (07) 3844 4200Fax: (07) 3844 4220Email:[email protected]:www.qai.org.au