Victoria has the oldest mental health legislation in the country. In the wake of Victoria’s Charter of Human Rights and Responsibilities and Australia’s ratification of the United Nation conventions on the Rights of the Child and the Rights of Persons with Disabilities, a rights-oriented revamp was plainly required.
Close to six years later and the Mental Health Bill 2014 has just been introduced into Victoria’s lower house. The bill represents Victoria’s bid for leadership status in the implementation of consultative mental health reform. Such reform puts mental health consumers (an alternative term for “patients”) and families at the centre of the care and funding frame.
What makes the Victorian approach such a human rights standout?
The new legislation places considerable limits on restraint and seclusion. In her second reading speech the Minister for Mental Health, Mary Wooldridge, noted the highly intrusive nature of practices that, “tragically have been linked to injuries and deaths”.
To reduce, and, where possible, eliminate the use of restrictive interventions, the Bill says they may only be used where necessary to prevent “imminent and serious harm”, and only after “all reasonable and less restrictive options have been tried or considered and have been found unsuitable”.
A range of parties must be notified where restrictive practices are deployed, including the consumer’s nominated person and the chief psychiatrist. Reviews of medical decisions to restrain or seclude must occur no less than every 15 minutes and cease once the legal justification is absent.
Central to the emancipatory flavour of the legislation is a presumption of capacity – or what is sometimes referred to as “competence”. The new legislation assumes that all consumers have capacity and – relatedly – the right to refuse or consent to assessment and treatment.
Practitioners who wish to override a consumer’s decision must be satisfied that the person is ill and an immediate intervention is required to prevent serious deterioration or harm to themselves or others. Even when these conditions are satisfied, genuine consultation with the person and their wider support network must occur.
If the consumer is not assessed within 24 hours (a maximum of two 24-hour extensions can be sought) the order lapses and they are free to go.
Similarly, involuntary treatment must meet the serious deterioration or harm threshold. It must be authorised by the independent Mental Health Tribunal within 28 days – the shortest statutory period in the country – or the order lapses.
Taken together, the aim of such measures is – in lay terms – to reverse the burden of proof. The onus is on the mental health service to demonstrate the consumer lacks the capacity to make binding decisions about treatment. If services fail to offer adequate justification for treating the consumer against his or her wishes, the tribunal can’t make a treatment order. This should encourage services to ensure the tribunal has the information it needs to make a timely decision in full view of the facts.
Where a consumer is deemed to temporarily lack capacity, the Act proposes “supportive decision-making” measures to bridge the gap between independent medical decision-making and complete loss of consumer control.
Advance statements and nominated persons support the autonomy of the consumer. Advance statements are written expressions of the consumer’s treatment wishes and recovery goals. They must be considered by the treating psychiatrist and the tribunal when a person is subject to compulsory treatment. The views of the advocate selected by consumers to support, represent and advocate for them when they temporarily lack capacity must also be taken into account.
The tribunal is just one of a range of safeguards and oversight mechanisms in the new Mental Health Act. These include the Mental Health Complaints Commissioner, an accessible specialist who will receive, manage and resolve complaints about public sector mental health services.
Advocacy services will be expanded and funding provided for consumers to exercise their rights to an independent second psychiatric opinion on whether the criteria for compulsory treatment apply. While the treating practitioner is not required to heed a dissenting second opinion, they must explain that choice to the consumer and advise that a further review can be sought from the chief psychiatrist.
The bill has widespread support from consumers and advocates. The view of one 25-year veteran of the mental health system is typical: “If it goes through, [Victoria] will have the most human rights-focused Mental Health Act in the country. While there are a couple of things I don’t agree with .. the Government knew what I wouldn’t agree with, which tells me they were listening.”
For those who wish to emulate Victoria’s success, the importance of a bipartisan approach, leadership and consultation can’t be overstated. Six years in the making, it’s important to remember the process of reforming the Mental Health Act began during the life of the previous Labor government and the hope is that Labor will support it.
By leadership and consultation, I don’t mean a process by which governments detail their agenda and ask citizens to comment. Instead, I’m referring to the collaborative process described in the International Association of Public Participation’s “public participation spectrum”. This is one where government’s “partner with the public in each aspect of the decision, including the development of alternatives and the identification of a preferred solution.”
Certainly this is what Victorian Mental Illness Awareness Council director Isabell Collins was describing when she lauded the minister as, “the first Mental Health Minister I’ve ever worked with who is completely committed to listening to consumers.”
Collins argued that this meant, “for the first time in 25 years consumers had a chance to set the reform agenda.”
This collaborative approach seems to continue with what the government calls “consumer and carer partnerships” that see both carer and consumer groups enjoying regular meetings with the minister throughout the implementation period for the reforms.
Victorians can feel justifiably proud of both the process and the outcome of the mental health reform process. As other Australian jurisdictions consider their own approach, they would do well to take a leaf from our book.
This article first appeared on ‘ABC’ on 28 February 2014.