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Responsibilities and rights

Transcript: Responsibilities and rights—Understanding the Mental Health Act 2016

Treatment and Care – Authorised doctors

Authorised doctors have specific responsibilities for providing treatment and care under the Act.

An authorised doctor must ensure the treatment and care to be provided to a patient is, and continues to be, appropriate for the needs of the patient and in compliance with the Act.

An authorised doctor must also record in the patient's health records the treatment that is planned to be, and that is, provided to the patient.

In addition, an authorised doctor must, to the extent practicable, provide timely, accurate and appropriate information to a patient about the patient's treatment and care.

For patients on treatment authorities, an authorised doctor must undertake regular assessments of the treatment authority on at least three monthly intervals.  An authorised doctor must also assess the patient if, at any time, it appears that the treatment criteria may no longer apply to the patient or that there may be a less restrictive way for the patient to receive treatment and care.

The purpose of an assessment is to determine whether the treatment authority should continue and, if so, the nature of treatment and care under that authority.

The treatment authority must be revoked if, at any time, the treatment criteria no longer applies to the patient or there is a less restrictive way for the patient to receive treatment and care.  The only exception to this is if a patient regains capacity, but the capacity is not stable.  To avoid a person with fluctuating capacity 'cycling' on and off treatment authorities, a patient may remain on a treatment authority until their capacity becomes stable.  It is intended that this would apply over a relatively short period of time.

Treatment and Care – Authorised Mental Health Service administrators

Administrators also have specific responsibilities under the Act in relation to the treatment and care of patients.

Administrators must take reasonable steps to ensure that the patient receives the treatment and care planned to be provided to the patient, as recorded in the patient's health records, and that regular assessments of patients on treatment authorities occur as required under the Act.

Administrators must, to the extent practicable, ensure the patient receives treatment and care for other illnesses or conditions also affecting the patient.

Administrators are responsible for maintaining an auditable system for recording patient's treatment and care.

Administrators must also take reasonable steps to ensure the patient's treatment and care complies with the requirements of the Act.

Treatment in the community

The Act outlines the requirements for involuntary patients to receive treatment in the community and the criteria that authorised doctors must consider when deciding community treatment for different types of involuntary patients.  It is important that authorised doctors understand and comply with these criteria.

Authorised doctors must also make decisions that align with decisions of the Mental Health Court and the Mental Health Review Tribunal.

For patients on forensic orders, the Act introduces two categories of orders – inpatient and community.  A forensic patient may be an inpatient, with or without limited community treatment of up to 7 days, or be on a community category.

With regard to limited community treatment, it should also be noted that classified patients may only receive on-ground escorted leave.

Whenever a patient on a treatment authority, forensic order or treatment support order is authorised to receive treatment in the community, the authorised doctor must decide the treatment and care to be provided and the patient's obligations while in the community.  The authorised doctor must discuss these matters with the patient and give the patient a written document summarising the treatment and care and the patient obligations.

Communication with patients

The Act places emphasis on communicating with patients.

The Act requires authorised doctors to discuss or explain matters with patients at key stages, including:

  • when making a recommendation for assessment for a patient
  • when a treatment authority is made for a patient
  • when deciding the treatment and care for a patient, or amending the treatment and care.

The authorised doctors must take reasonable steps to ensure the patient understands the information. For example, if a patient is unwell and appears not to understand the information, an authorised doctor should explain the matters to the patient when the patient's condition improves.

The requirement to communicate with patients is a critical element of the Act.

All staff of authorised mental health services should familiarise themselves with these requirements and ensure they are built into everyday practice.

Communication with support persons

The engagement of support persons can be very beneficial to a patient's treatment, care and recovery.  In the Mental Health Act 2016, there is a strong emphasis placed on communicating with family, carers and other support persons.

The Act requires authorised doctors to discuss or explain matters with support persons at the same key stages that matters are explained to patients.

If a patient has a nominated support person or persons, the discussion must be held with them.  If not, the matters must be discussed with one or more of the patient's family, carers or other support persons.

There are exceptions to this requirement, namely:

  • If the patient has capacity and requests the communication not take place.
  • If the support person is not reasonably available, for example, is not in the hospital or cannot be contacted by telephone, or
  • the communication would be detrimental to the patient, so for example, if they are in a dysfunctional family relationship.

The requirement to communicate with support persons is a critical element of the Act, therefore all staff of authorised mental health services should familiarise themselves with these requirements and build them into everyday practice.

Nominated support persons

The Act enables persons to appoint one or two "nominated support persons" to support them at a future time if they become an involuntary patient.

A nominated support person must receive all of the notices that the patient must receive under the Act, can discuss confidential information about the person with the treating team and can also represent or support the patient at Mental Health Review Tribunal hearings.

Administrators must keep a record of nominated support persons when requested to do so.

While having a nominated support person is beneficial to a patient, authorised mental health services should recognise and engage with all support persons in the patient's best interests.

Independent Patient Rights Advisers

Under the Act, all public sector authorised mental health services must engage Independent Patient Rights Advisers.  The number of advisers to be appointed by each service is outlined in a Chief Psychiatrist Policy.

The main function of this role is to advise patients and their support persons on their rights under the Mental Health Act 2016.

This is a very important component of the Act, as the legislation contains extensive rights for patients and support persons, however, it may be difficult for individuals to understand and access these rights.

Staff of authorised mental health services will appreciate the need for these advisers to perform their function independently, so that all persons can have confidence that the advice they provide is both fair and impartial.

Advisers may be employed in a Hospital and Health Service, but not in the mental health service, or alternatively, employed in a non-government organisation under an agreement with the Hospital and Health Service.  All services need to give detailed consideration as to how to best support Independent Patient Rights Advisers in this significant role.

It is important to note that the presence of Independent Patient Rights Advisers does not remove the obligation of staff to talk to patients about their rights as part of clinical best practice.

Patient rights

Patients have a number of other specific rights under the Mental Health Act 2016.

Patients in an authorised mental health service have the general right to be visited at any reasonable time.  However, administrators may exclude specific persons if it would adversely affect the patient's treatment and care.

Patients have the general right to communicate by phone or mail but administrators may restrict or prohibit the use of phones and electronic devices on a case-by-case basis, if it would be detrimental to the patient or others.

Patients and support persons have the right to seek a second opinion about a patient’s treatment if there is an ongoing concern with the patient's treatment and care.  A Chief Psychiatrist Policy applies to seeking second opinions.

The Chief Psychiatrist is required to prepare a Statement of Patient Rights, which is to be made available to patients and support persons in authorised mental health services.

Last updated: 26 July 2019