Introduction to the Act
by Associate Professor John Allan, Executive Director, Mental Health and Other Drugs Branch, Department of Health
The Mental Health Act 2016 commenced on 5 March 2017.
The Act places a lot of emphasis on strengthening patient rights.
A critical right is that persons with capacity to make decisions have a right to decide whether or not to have any treatment for any illness.
This principle now applies to the criteria for placing persons on treatment authorities – which replace involuntary treatment orders under the previous Act.
The Act also places greater emphasis on advance health directives as a way for persons to have a greater say in their own future health care if, at a future time, they are unable to make decisions for themselves.
If a person can be treated satisfactorily under an advance health directive, then they must be treated under the directive, rather being treated involuntarily under the Act.
We know that support persons can have a positive impact on a patient’s treatment, care and recovery.
For this reason, the Act requires communication with support persons at key stages in a person’s treatment and allows patients to appoint a ‘nominated support person’ to assist if the person becomes unwell.
To support patients and their support persons, each Hospital and Health Service will be required to have an Independent Patient Rights Adviser or a number of advisers.
This is a major initiative in the legislation, which will strengthen the opportunity for patients and their support persons to understand and access their rights under the Act.
We are all aware of the goal of reducing and where possible, eliminating the use of seclusion and mechanical restraint.
With this goal in mind, the Act has additional safeguards on the use of seclusion and mechanical restraint.
The Act also includes, for the first time, provisions dealing with physical restraint and the appropriate use of medication, such as forced sedation.
Under the Act, ‘examination authorities’ are made by the Mental Health Review Tribunal. These authorities allow a doctor or authorised mental health practitioner to involuntarily examine a person if there are concerns about the person’s health and well-being.
However, these authorities will be used as a last resort and services will need to be proactive in exploring voluntary treatment when concerns are raised about a person.
Emergency examination authorities may be made by a police officer or an ambulance officer under the Public Health Act. These authorities enable a person at risk due to a major disturbance in mental capacity, due to illness, disability, injury or intoxication, to be taken to a hospital for examination or treatment and care.
There are also important changes in the forensic mental health system.
A person charged with a serious offence who is on order or authority under the Act may request a free psychiatrist report to assist them in deciding whether to pursue a mental health defence in court.
The Act introduces a new order called a ‘treatment support order’, which the Mental Health Review Tribunal can make as a step-down from a forensic order when it is reviewed by the Tribunal.
A treatment support order will assist in the recovery of patients.
Magistrates will also be given express powers to dismiss charges for persons if the magistrate believes the person may have been of unsound mind when the offence occurred or is not fit for trial.
This will be of major benefit to persons with a mental illness before a magistrate.
All of these changes will impact significantly on the way that mental health services operate.
It is essential that all staff in mental health services understand these changes and amend clinical practices and business processes accordingly.
By working collaboratively with patients and support persons, the Act provides a great opportunity to improve outcomes for members of the community.