THE MENTAL HEALTH ACT 2014
The Mental Health Act 2014
QUIZ TIME!
The Mental Health Act 2014
What year was Crocodile Dundee released?
1986
What year was John Farnham’s ‘You’re the
Voice’ a number 1 in the charts?
1986
What year was Lady Gaga born?
1986
The Mental Health Act 2014
The Mental Health Act 2014
The Mental Health Act 2014
1986
2013
The Mental Health Act 2014
1986
2013
The Mental Health Act 2014
1986
2013
Victorian Mental Health Legislation
History
Victorian Mental Health Legislation
History
Act History of Victorian Mental Health
Legislation
The 1986 Mental Health Act
enshrined the principle
of ‘normalization’ and the move
to shorter stays, if any, in
bed-based psychiatric services.
Mental Health Act 2014
The Current Mental Health Act was
Introduced in 1986
• oldest Act within Australia
• Not reflective of current mental health
policy or best practice
• unlikely to be compatible with the Charter
of Human Rights, Convention on rights of
Persons with a Disability, Convention on the
rights of a Child.
MH ACT 2014
Presumption of capacity
Capacity is the ability of a person to make a
particular treatment decision at a particular
point in time.
Capacity of people with mental illness can
fluctuate and the capacity of children and
young people may still be evolving (Gillick
case –maturing capacity).
Capacity: What will change under the
new legislation
MHA 1986 patients presumed to lack capacity.
• Capacity forms part of the criteria for placing someone on an
ITO.
• This creates a presumption that the person does not have
capacity to make any decision about their treatment, care and
recovery.
What will be different
1. Criteria for compulsory treatment order will not include
capacity.
2. New legislation will establish a presumption of capacity to
make an informed decision about treatment for all people
with a mental illness regardless of age.
3. New legislation will include a capacity test
The presumption of capacity
A person is presumed to have capacity to make
decisions about their treatment care and
recovery regardless of age or legal status this
includes patients and children and young
people who are under compulsory treatment
orders.
Displacing the presumption of
capacity.
The presumption of capacity may be displaced where it is
demonstrated that the person cannot make a decision
about a particular treatment or course of treatment at that
point in time.
However
• A person is not to be treated as being unable to make a
decision unless all practicable steps have been taken to
help him or her without success.
• Person not to be treated as unable to make decision merely
because he or she makes an unwise decision.
• Lack of capacity cannot be established merely by reference
to a persons age or appearance or because the person is a
compulsory patient.
How do you know if a person has
capacity
The new legislation will establish a capacity test.
The Test
A person has capacity to make decision if the person:1. Understands the information he or she is given that
is relevant to the decision.
2. Is able to remember the information relevant to the
decision.
3. Is able to use or weigh information relevant to the
decision.
4. Is able to communicate the decision.
Understands
• The person must be able to understand the information relevant to
a decision and the effects of that decision.
• The person maybe supported to understand information
• The person is not to be regarded as unable to understand the
information. Information is to be provided that is appropriate to the
persons circumstances e.g. using simple language, visual aids or
other means.
• Where a person cannot make a decision at a particular time, it may
be appropriate to delay the making of the decision if it is likely the
person may be able to make the decision at a time in the near
future.
Remember
• The fact that a person is able to retain the
information relevant to a decision for only a short
period should not preclude her or him from being
regarded as being able to make a decision.
• A person requires the ability to remember only to
the extent it is necessary to make a decision.
• It will not be necessary for the person to have
memorised exactly the advice or information
being provided. If it is generally recalled that is
sufficient.
Use or weigh
• The person must be able to understand the
information relevant to a decision and the
effects of that decision.
• Person must be able to simply assess the
information and consider the impact of
making a particular decision or another
decision or of failing to make a decision at all.
Communicate
• A inability to communicate a decision does not
mean a person lacks the cognitive ability to make
a decision.
• All reasonable efforts should be made to assist
people in these circumstances to communicate
their decisions to others
• A person should be able to communicate even on
simple terms their understanding of the factors
they considered relevant to their decision.
Advocates
The government will fund advocacy and
support services/telephone advice to assist
in decisions:
• assessment
• treatment
• recovery
Advance statements
Enable a person to record their treatment
preferences if they become unwell and require
compulsory treatment.
DoH will be developing advance statement
protocols and processes.
A statewide proforma will be established to
utilised by all AMHS.
Nominated person
A patient will be able to nominate a person to
receive information and to support the patient
for the duration of the compulsory treatment
order.
Carers and families
The support of carers and families is significant
to patient recovery
• involve carers and families in supporting
patients to make decisions about their
assessment, treatment and recovery wherever
possible.
Compulsory treatment orders
The new legislation will establish compulsory
treatment orders comprising:
• An Assessment Order
• A 28-day Treatment Order
• A Treatment Order.
An Assessment Order
A registered medical practitioner or a mental
health practitioner.
1. that the person appears to have a mental
illness
2. needs treatment to prevent serious harm to
the person
An Assessment Order
3. need treatment to prevent serious
deterioration in their mental or physical
health or
4. need treatment to prevent serious harm to
another person
5. no less restrictive means reasonably available,
including a voluntary basis.
An Assessment Order
Enable an authorised psychiatrist to assess the
person to determine whether they ‘have a
mental illness’
• will last for a maximum of 24 hours
• extended up to a maximum of 72 hours in
exceptional circumstances.
28-day Treatment Order
After an Assessment Order the authorised
psychiatrist may:
– make a 28-day Treatment Order
28 day Treatment Order
The criteria for a 28-day Treatment Order will
require that the authorised psychiatrist
determine:
– that the person has a mental illness.
– needs treatment to prevent serious harm to the person.
– need treatment to prevent serious deterioration in their
mental or physical health or
– need treatment to prevent serious harm to another person.
– no less restrictive means reasonably available, including a
voluntary basis.
28-day Treatment Order
A person is not to be placed on a compulsory
treatment
• history of mental illness
• and as a result there may be a harm that
manifests in the future.
28-day Treatment Order
The authorised psychiatrist must also specify the
category of the order:
• ‘inpatient’
• ‘community’
The authorised psychiatrist must regularly
review the Order and discharge the person:
• if the criteria no longer apply.
Treatment Order
If a patient remains on a 28-day Treatment
Order at the end of the period of the order:
• The Mental Health Tribunal must conduct a
hearing. To ensure the criteria for compulsory
treatment applies to the person
• If the matter is not heard within 28-day the
order will expire
Treatment Order
If a patient remains on a 28-day Treatment
Order at the end of the period of the order:
The Mental Health Tribunal can make a
Treatment Order:
• Inpatient (up to six months)
• Community (up to 12 months)
Treatment Order
The authorised psychiatrist will be responsible
for providing treatment:
• The authorised psychiatrist will be able to vary
the category of the Treatment Order if
required.
Treatment Order
The authorised psychiatrist may make an
application to the further Treatment Order to
the Mental Health Tribunal
• if the criteria for compulsory treatment still
apply to the patient
• the matter is not heard by the Mental Health
Tribunal within the period of the order the
Treatment Order will expire
Treatment Order for young
persons under 18 years of age
The criteria for a YP 28-day Treatment Order will
require that the authorised psychiatrist must
determine if.
― The young person has a mental illness ?
― Needs treatment to prevent serious harm to the person?
― need treatment to prevent serious deterioration in their mental or
physical health or
― need treatment to prevent serious harm to another person.
― no less restrictive means reasonably available, including a voluntary
basis.
Treatment Order for young
persons under 18 years of age
The authorised psychiatrist will be responsible
for providing treatment:
• Inpatient
• Community
The authorised psychiatrist will be able to vary
the category of the Treatment Order if
required.
Treatment Order for young persons
under 18 years of age
The Mental Health Tribunal can make Treatment
Order Treatment Order (either inpatient or
community category):
• 3 months, although the tribunal will be able to
make further orders if the criteria still apply
Safeguards – increase safeguards
to protect rights and dignity
The legislation will establish a Mental Health
Tribunal(MHT) to replace the Mental Health
Review Board and the Psychosurgery Review
Board
• MHT-will make Treatment Orders for patients
• three members: a lawyer, a registered medical
practitioner and a member of the community
Safeguards – increase safeguards
to protect rights and dignity
Registered medical practitioner members will be
qualified psychiatrists wherever practicable
• the registered medical practitioner must be a
psychiatrist when the MHT:
1. considering an application for
electroconvulsive therapy
2. or psychosurgery for mental illness
Mental Health Tribunal
• MHT will be a primary decision maker rather
than a review body
• MHT will perform its functions in a manner
that promotes the principles and objectives of
the MHA
Mental Health Tribunal
MHT will make order for /approve
• Compulsory treatment beyond an initial 28 day
period, including duration and the setting the
order will take place.
• All orders will be time limited
• Applications can be made for further treatment
orders by Authorised Psychiatrist – must be done
before current order expires.
• Consumers will still be able to appeal to the MHT
– this will be called a application for revocation.
Mental Health Tribunal
• More frequent hearings scheduled at venues,
supplemented by a capacity to conduct videoconference
hearings as needed.
• Adjournments will be limited to matters involving
exceptional circumstances.
• Must be assumed that hearings have to proceed on the day they
are scheduled.
• Reports and oral evidence from the treating team must address
each of the applicable criteria and provide sufficient detail in
relation to treatment.
• Insufficient /inadequate evidence will mean the MHT will not be
able to make an order.
Electroconvulsive therapy
ECT may only be performed with the approval of
the Mental Health Tribunal.
• on a compulsory patient
• or a person under 18 years of age with
Electroconvulsive therapy
ECT may only be performed with the approval of
the Mental Health Tribunal.
• on a compulsory patient
• or a person under 18 years of age with
Electroconvulsive therapy-Informed
Consent
If the MHT determines that a compulsory
patient or young person has capacity to
consent
• the tribunal will still be required to give
approval for ECT if the patient or young
person gives informed consent
Electroconvulsive therapy-Not able to
provide Informed Consent
A compulsory patient or young person does not
have capacity to consent to ECT:
The MHT must decide:
• whether the ECT will be for the ‘benefit of the
person’
• whether the ECT is likely to remedy the
mental illness or lessen the ill effects
Restrictive interventions (bodily
restraint and seclusion)
• improve the safety of restraint and seclusion
• oversight of and accountability for these
restrictive practices.
• Current Reducing Restrictive Intervention Project
is being undertaken.
• Project Officers have been appointed across the
state.
• Each AMHS is required to develop a plan on how
to reduce restrictive practices within their
organisations.
Second psychiatric opinion
A right for compulsory patients to seek a second
psychiatric opinion provided by a psychiatrist:
• public mental health service
• or in the private sector
• Some additional state funds for second
opinions provided by private psychiatrists.
• Feedback is currently being sought from the
Sector.
Second psychiatric opinion
A right for compulsory patients to seek a second
psychiatric opinion:
second psychiatric opinion promote a dialogue
between:
• the authorised psychiatrist,
• the treating team
• the patient
• family and carers
Second psychiatric opinion
Intended to promote self –determination for Pts
by providing
• Information about their treatment
• Whether treatment is least restrictive
• Better understand their illness
• Empower them to contribute to decision the
making.
Second psychiatric opinion
Authorised Psychiatrist will be required to
• Consider the second psychiatric opinion
• Will not be required to change course of
treatment if they disagree with 2nd opinion.
• Required to discuss the 2nd opinion with the
patient.
• Explain to the reasons why they believe the 2nd
opinion treatment option in all or in part should
be adopted.
Second psychiatric opinion: Review By
Chief Psychiatrist
A patient will be entitled to apply to the Chief
Psychiatrist for a review:
• If the authorised psychiatrist does not adopt any
or all of the recommendations contained in the
second opinion report
• The Chief Psychiatrist may direct the authorised
psychiatrist to make changes to the patient’s
treatment.
• 2nd opinions will not delay or prevent an
authorised psychiatrist from providing treatment.
Second psychiatric opinion
Eligibility for a 2nd opinion
• Patient under the nMHA, compulsory, forensic
or security patient
• Disclosed if they have obtained a 2nd opinion
(from any source) within the last 12 months
Second psychiatric opinion
Who will provide the 2nd opinion
• A Psychiatrist registered with AHPRA
• A Psychiatrist registered with AHPRA with a
minimum of 3 years experience practicing in
public mental health.
• Required to be registered on a panel of
psychiatrist able to provide 2nd opinions.
Oversight and service improvement
Mental Health Complaints Commissioner
The commissioner:
• Will be accessible, supportive and timely.
• Adopt best practice principles, including transparent
complaints handling processes.
• receive,conciliate,investigate and resolve complaints
about public sector mental health service providers
• will have broad powers to investigate services, make
recommendations and issue compliance notices
Oversight and service improvement
Chief Psychiatrist:
• will focus on supporting public sector to
deliver quality mental health services
• also analyse data
• undertake research
Oversight and service improvement
Chief Psychiatrist:
• publish reports about the provision of public
mental health services
• monitor services and conduct investigations
• issue directions to public mental health
services to improve patient safety and
wellbeing.
Oversight and service improvement
Community visitors
This program will remain in place under the
nMHA
They will continue to monitor and provide
feedback on the provision of mental health
service.
Oversight and service improvement
Codes of practice
The Office of the Chief Psychiatrist will be
establishing codes of practice for Mental
Health Clinicians that will comply with the
underpinning principles of the nMHA.
Oversight and service improvement
Disclosure of health information.
The nMHA will clarify when a person mental
health information may be disclosed so that
people with mental illness, clinicians, families
and carers can better understand their rights
and responsibilities.
NMHA Steering Committee
Members of the Committee
Project Officer: Jim Reid (Chair)
Director of Nursing: Vic Tripp
Senior Psychiatric Nurse Consultant: Tim Lenten
Consultant Psychiatrist: Dr Holly Anderson
Bendigo CMH Team: Jan Tripp
Southern sector CMH Team: Sue Aitken
Northern Sector CMH Team: Brendan Watson
Inpatient Services: Rachel Finch
ETP Team: Belinda Crossley
Youth Mental Health: Steve Potter
CAMHS Team: Melinda Forbes
APMHS Team: Kevin Gerber
NMHA Steering Committee
Members of the Committee
St Lukes Service: Chris McInnes
Medicare Local: Jag Dhaliwal
Department of Health: Annette Toohey
Consumer Consultant: Brendan Landy
Carer Consultant: Cathy Spencer
Administrative Services Representative: Vance Lindrea
Bendigo Health Emergency Department: Carol-Anne Lever
Australian Nursing Federation: Loretta Marchesi/Donna Hansen
HACSU: Ginny Adams
Minute Secretary: Lyn Wilson