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MENTAL HEALTH BILL 2014
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20 February 2014
Second Reading
WOOLDRIDGE
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MENTAL HEALTH BILL 2014
Second reading
Ms WOOLDRIDGE (Minister for Mental Health) -- I move:
That this bill be now read a second time.
Speech as follows incorporated into Hansard in accordance with resolution of
house:
The Victorian government is putting individuals and families at the centre of
mental health services and investing in new ideas to improve the lives of
people with mental illness.
Victoria's priorities for mental health reform focus on ensuring people who
need mental health treatment and support can access high-quality and
responsive care when they need it. People with a mental illness and their
families should be able to actively participate in decisions related to their
care and have a range of choices about the types of support they need to
achieve optimal wellbeing.
Preventing mental illness where possible, providing help early and working
with individuals and their families to meet their own recovery goals is
central to the government's approach. Together with people with a mental
illness, carers, families and services, the Victorian government is building a
stronger system in which long-term recovery and support for overall health and
wellbeing, social connectedness and economic participation are paramount.
Victoria's Priorities for Mental Health Reform 2013-15 highlights the concrete
actions to be taken over the next three years to:
reform Victoria's mental health legislation;
strengthen clinical mental health services;
reform mental health community support services;
connect mental health services with other health and human services;
broaden prevention and promotion activities;
develop a stronger, more capable and sustainable specialist mental health
workforce.
Victoria has a diverse and vibrant mental health sector spanning the public,
community-managed and private sectors.
Page 471
Yet the way this sector is configured, funded and integrated into the broader
health and human services systems needs significant reform, important aspects of
which are now under way.
Comprehensive reform of Victoria's mental health legislation is a central
element in the coalition government's agenda for mental health.
The government's objective is to deliver new mental health legislation that
provides an effective and contemporary legal framework for the assessment,
treatment and recovery of Victorians with severe mental illness.
The current Mental Health Act is over a generation old. It is tired, out of
date, and needs the major overhaul provided by this bill.
The bill has involved comprehensive policy development over a period of more
than five years.
The review of the Mental Health Act 1986 examined recent developments in
treatment and care in mental health services and mental health policy at both
national and state level, including:
opportunities for people with mental illness to meaningfully participate in
decisions about their treatment and recovery;
health and social outcomes;
oversight and complaint mechanisms;
responsiveness to families and carers; and
reforms to mental health services.
An exposure draft for the mental health bill was released at the end of 2010
and attracted a lot of comment. These submissions consistently said that more
work was needed to produce a good mental health bill. Consistent with our
election commitments, the Victorian government held round table public
meetings and targeted consultations in the first half of 2011 to discuss the
issues identified in these submissions. These meetings were extremely
productive, with the community and government working together to identify
practical policy solutions for the future of Victoria's mental health
legislation.
I acknowledge that there is a diversity of views among consumers, carers,
families, health professionals and the community about some aspects of the
policy.
As far as possible, the government has sought to reconcile these differences
and deliver our key reform objectives.
As a result of this work, in October 2012 the government released A New Mental
Health Act for Victoria -- Summary of Proposed Reforms, which outlined the
government's key objectives and policy intentions for reform of the mental
health legislation in Victoria. These included the intention to:
embed supported decision making in the law;
promote recovery-oriented practice;
minimise the use and duration of compulsory treatment;
require compulsory treatment to be provided in the least restrictive and
least intrusive manner possible;
better facilitate carer and family involvement in treatment and care;
increase safeguards to protect patient rights and dignity; and
encourage public sector clinicians and service providers to engage in
continuous service improvement and reforms to the mental health service
system.
The government has continued to engage with the community and stakeholders
throughout the development and drafting of the bill.
This bill delivers all the government's reform objectives, which respond to
the community's expectations for contemporary mental health legislation that
promotes supported decision-making partnerships between patients and
practitioners and enables public sector clinicians and public mental health
service providers to deliver quality mental health services.
The bill establishes a comprehensive, individual-focused legal framework for
the compulsory assessment, treatment, support and recovery of persons with
mental illness.
The bill repeals and replaces the Mental Health Act 1986. The bill also makes
amendments to the Sentencing Act 1991 and consequential amendments to a number
of other acts.
Establishing a recovery framework
The government is committed to ensuring an approach that puts the patient at
the centre of health care. This bill provides a legislative framework that
promotes recovery-oriented practice in the Victorian public mental health
service system.
Recovery is often described as a journey rather than an outcome. The term
'recovery' in the mental health context does not necessarily mean that the
person no longer has mental illness or is no longer experiencing any symptoms
of mental illness. Instead, recovery in mental health encompasses the often
fluctuating nature of mental illness where some people will not have a
recurrence of illness, others will have some further episodes and some will
experience repeated episodes of illness over time.
Recovery is about maximising individual choice, autonomy, opportunity and
wellbeing during a person's life and accordingly is a self-defined process
that is highly individual.
The role of mental health service providers in recovery is to provide
effective support when and where required, within an integrated system that
enables people with mental illness to put in place the supports they need to
maximise their wellbeing.
Supported decision making
At the very heart of the bill is a supported decision-making model that will
enable patients to make or participate in decisions about their assessment,
treatment and recovery and to be provided with the support to do so.
A key fundamental change in this bill is that people with mental illness are
presumed to have capacity to make decisions about their own care.
Page 472
People with serious mental illness may have fluctuating capacity to make
decisions about treatment. A person with mental illness may not be able to
make a decision about a course of treatment at a particular point in time, but
may regain capacity to make that decision at another time.
The bill provides that all people are presumed to have capacity to make
decisions about their own treatment unless it is established that the person
lacks capacity at the time the decision needs to be made. This presumption
exists regardless of the person's legal status under the bill.
The bill includes criteria for determining whether a person has capacity to
give informed consent and principles to assist clinicians to determine whether
a person can consent to treatment at the time the decision needs to be made.
All reasonable steps should be taken to ensure that the assessment occurs at a
time and in an environment in which the person's capacity can most accurately
be assessed.
Where a patient is unable to consent, they must be supported to be involved in
the decision-making process to the greatest extent possible.
The bill recognises that a person's capacity to make a decision can be
affected by the support available to them. People who may not be able to make
a decision alone might be able to make their decision with appropriate
support.
The bill requires that mental health service providers provide patients with
relevant information and reasonable support to make or participate in
decisions about their treatment.
Nominated person
The bill establishes the role of the nominated person. It enables a person to
nominate another person to receive information and to provide support in the
event that the person becomes unwell and requires compulsory treatment. We
anticipate that in most cases the nominated person will be a family member or
carer -- providing a clear legislative recognition of carers in this
legislation.
The role of the nominated person is to help protect the patient's interests.
They may assist the patient to exercise their rights and can help represent
the patient's views and preferences about their treatment and recovery to
members of the treating team. They will be given information and consulted at
critical points in planning the patient's treatment and recovery, such as
admission and discharge, and will be able to give their views.
It is not intended that the nominated person should act independently of the
patient and they are not a substitute decision-maker. The role will be
voluntary and the patient and their nominated person will decide together how
active and involved the nominated person will be in support of the patient.
Carers
While it is expected that a nominated person will be someone who is
significant in the life of the patient, most likely a family member or carer,
there will often be other people who are actively involved in their life and
provide support and care to the patient. The support of carers is crucial to
recovery.
The government supports the important, valuable and often difficult role
undertaken by carers.
Including specific provisions enabling carers to be involved in the treatment
and care of people with mental illness furthers the government's commitment to
supporting and facilitating the important role of carers as reflected in the
Carers Recognition Act 2012. The bill encourages greater opportunities for
partnership between carers, patients and clinicians. It seeks to involve
carers in key decisions about assessment, treatment and recovery wherever that
is possible. It also allows carers to be given information if they need that
information to provide care to a patient.
This bill will promote mental health service providers working closely with
patients and carers to identify and meet the specific needs of the carers to
support them to undertake their important role. This includes providing
information relating to treatment and management options, how to respond to
disturbing behaviours, how to access practical assistance and generally
assisting carers to effectively support the person with mental illness.
Advance statements
During consultations, consumers expressed frustration about the lack of a
formal mechanism in law for them to set out in writing their preferences for
future treatment in the event that they become unable to make such decisions.
The bill enables a person to make an advance statement to record their
treatment preferences in the event that they become unwell and require
compulsory treatment.
Preparation of an advance statement provides an opportunity for people to
discuss their views and preferences about treatment with their treating team,
their nominated person, family members and carers. It can also be an
opportunity to discuss and specify the extent to which the person wants carers
involved in their treatment, support and care.
Importantly, advance statements will assist the authorised psychiatrist to
understand the patient's treatment preferences and, if the person is unable to
make decisions, enable the authorised psychiatrist to make treatment decisions
that better align with the patient's preferences.
Advance statements are intended to improve communication, give patients
greater control over their treatment when they are subject to compulsory
treatment and promote an improved patient experience and recovery.
Second psychiatric opinion
The bill provides a right for patients to seek a second psychiatric opinion
about their treatment at any time and, in the case of compulsory and security
patients (who are prisoners who require compulsory mental health treatment),
whether the criteria for compulsory treatment still apply to the patient.
Second psychiatric opinions are intended to promote self-determination by
giving patients information about their treatment and available alternative
treatments so that they can make informed contributions to decisions about
their treatment.
Advocacy
Separate to the legislation, the government will also fund advocacy and
support services for patients as an integral part of the reforms. Advocates
will be available to visit mental health service providers or provide
telephone advice to assist
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patients to participate in decisions about their assessment, treatment and
recovery.
Advocates will provide information and assist patients to understand and
exercise their rights, but they will not provide legal advice or represent
patients at Mental Health Tribunal hearings.
Compulsory treatment
The existing safeguards in the current Mental Health Act 1986 are inadequate
to ensure that treatment is provided in the least restrictive and least
intrusive manner. For example, the current criteria for orders are not
effectively targeted and enable a person who 'appears' to have a mental
illness to be placed on an involuntary treatment order.
The current involuntary treatment orders have an indefinite duration and the
substitute decision-making model for providing compulsory treatment is
inconsistent with contemporary views about patient participation and recovery.
The bill seeks to promote and enable voluntary assessment and treatment in
preference to compulsory assessment and treatment wherever possible.
Where compulsory treatment is required, the bill seeks to minimise its
duration and ensure that it is provided in the least restrictive and least
intrusive manner possible. The bill does this by introducing specific criteria
for compulsory treatment, treatment orders that operate for a fixed duration,
and timely independent oversight by a new Mental Health Tribunal.
The bill specifies the criteria for providing compulsory assessment and
treatment.
The criteria provide clear guidance to decision-makers, consumers and other
stakeholders about when compulsory assessment and treatment are appropriate.
The criteria reflect the objectives of the bill and have been designed to
ensure that compulsory assessment and treatment are only used when there is no
less restrictive means reasonably available to ensure a person receives
necessary assessment and treatment.
Safeguards, oversight and service improvement
The power to restrict a person's rights, such as to provide compulsory
treatment or to limit a person's freedom of movement, brings with it an
obligation to ensure that any restrictions can be justified, are proportionate
and include effective oversight and safeguards.
The bill establishes a comprehensive and integrated suite of oversight
mechanisms and safeguards to protect the rights of patients.
Mental Health Tribunal
The bill establishes the Mental Health Tribunal to replace the Mental Health
Review Board and the Psychosurgery Review Board. The tribunal is a
quasi-judicial body that is independent of designated mental health services.
The principal role of the tribunal will be to make treatment orders for
patients. Under the current Mental Health Act 1986, the authorised
psychiatrist is responsible for both making treatment orders and deciding the
treatment a patient will receive. This dual role can lead to tensions between
the patient and the treating psychiatrist and can be a barrier to establishing
a collaborative treatment relationship and a focus on recovery.
This bill establishes the tribunal as an independent body to decide that a
person requires compulsory treatment. This will leave the authorised
psychiatrist and other members of the treating team free to engage with the
patient in ways that promote recovery-oriented mental health care.
Mental health complaints commissioner
Feedback through the community consultation processes identified a level of
dissatisfaction with the current arrangements for making complaints about
mental health service providers. People reported that complaints pathways can
be complex and difficult to navigate, and that responses to complaints have
not been timely or responsive to the needs of people with mental illness.
Further, there have been no statutory mechanisms to ensure complaints lead to
improvements in the safety and quality of mental health services.
The bill establishes a mental health complaints commissioner to receive,
manage and resolve complaints about mental health service providers. The
commissioner will provide an accessible, supportive and timely complaints
mechanism that will be responsive to the needs of people with mental illness.
Chief psychiatrist
The chief psychiatrist will continue to provide clinical leadership and advice
to public mental health services.
The bill redefines the role of the chief psychiatrist to focus on supporting
mental health service providers to improve the quality and safety of the
mental health services they provide and promoting the rights of people
receiving mental health services, in particular people receiving compulsory
assessment or treatment.
This will be achieved through expert clinical advice and other leadership
functions, including clinical guidelines, specialist clinical information,
training and education.
I now turn to the parts of the bill.
Part 1 sets out the purpose of the bill and definitions. It includes a
definition of mental illness to ensure the scope of the legislative scheme is
clear. For the removal of doubt, the definition sets out a list of attributes
which by themselves cannot be used to determine that a person is mentally ill.
Part 2 sets out the objectives and principles of the bill.
A key objective of the bill is to enable the assessment of persons who appear
to have mental illness and the treatment of persons with mental illness.
The grounds for determining that a person needs assessment or treatment are
set out elsewhere in the bill.
The bill seeks to ensure that assessment or treatment is given in the least
restrictive way possible with the fewest restrictions possible on rights and
dignity. It also aims to protect the rights of persons receiving assessment or
treatment, and ensure they are informed of their rights under the bill and
supported to exercise their rights.
The bill also seeks to ensure that assessment and treatment occur within a
broader recovery-oriented framework by supporting people to be involved in
decisions about their assessment, treatment and recovery.
Page 474
Part 2 also includes the guiding principles of the bill. Mental health service
providers must have regard to the mental health principles when providing
mental health services and any other person must have regard to the principles
when exercising a power or performing a function under the bill.
Part 3 sets out the requirements for informing patients about their rights.
Detention and treatment in a designated mental health service places
limitations on liberty and security of a person.
The bill establishes a right to communicate lawfully and specifies the limited
circumstances when communication can be restricted. Communication is critical
to enable patients to seek and obtain support consistent with
recovery-oriented practice.
For this reason, the bill provides that restrictions on communication cannot
limit access to a legal representative, the mental health complaints
commissioner, the Mental Health Tribunal or a community visitor.
Division 3 of part 3 sets out the requirements for making and revoking advance
statements. An advance statement enables a person to record their treatment
preferences in the event that they become unwell and require compulsory
treatment.
Division 4 of part 3 provides for the appointment of nominated persons and
defines the role.
Part 4 of the bill establishes a comprehensive framework of orders for
compulsory assessment and treatment of persons with mental illness.
Assessment order
A registered medical practitioner or a mental health practitioner may make an
assessment order for a person if they have examined the person and are
satisfied that the criteria for an assessment order apply to the person.
The criteria for an assessment order require the relevant practitioner to be
satisfied that the person appears to have a mental illness and because of the
apparent mental illness appears to need immediate treatment to prevent serious
harm to the person or another person or to prevent serious deterioration in
the person's mental or physical health.
The practitioner must be satisfied that there is no less restrictive means
reasonably available to assess the person.
For example, if the person is willing to seek voluntary treatment, this would
be a less restrictive option and the practitioner should not make the person
subject to an assessment order.
The purpose of an assessment order is to enable an authorised psychiatrist to
examine the person to determine whether they have a mental illness and require
compulsory mental health treatment. It is this process of examination and
deciding whether the criteria for a treatment order apply to the person that
is known as assessment.
Assessment may be conducted in an inpatient setting or in the community.
Consistent with the objectives of the bill, a practitioner should only make an
inpatient assessment order if they are satisfied that the assessment of the
person cannot occur in the community.
The authorised psychiatrist must complete the assessment of a person subject
to an assessment order with 24 hours of the person being received at a
designated mental health service, in the case of an inpatient assessment
order, or within 24 hours of the making of a community assessment order. An
authorised psychiatrist may extend the assessment period twice, up to a
maximum of 72 hours in total, if he or she needs more time to complete the
assessment.
A patient subject to an assessment order may only be given treatment for their
apparent mental illness if they consent to the treatment or if the treatment
is necessary as a matter of urgency to prevent serious harm to the person or
another person or to prevent serious deterioration in the person's mental or
physical health.
Temporary treatment order
At the assessment, if the authorised psychiatrist determines that the criteria
for a temporary treatment order apply to the person, the authorised
psychiatrist may make a temporary treatment order.
The criteria require the authorised psychiatrist to be satisfied that the
person has a mental illness. It may not be possible for the authorised
psychiatrist to make a specific medical diagnosis at this early stage, such as
schizophrenia, but he or she must be satisfied that the person has a mental
illness as defined in part 1 of the bill.
The authorised psychiatrist must be satisfied that, because of the person's
mental illness, they need immediate treatment to prevent serious harm to the
person or another person or to prevent serious deterioration in the person's
mental or physical health.
The authorised psychiatrist must be satisfied that treatment will be provided
to the person if they are placed on a temporary treatment order. This
criterion ensures that people are only made subject to an order if the
authorised psychiatrist is satisfied that there are suitable services
available to treat the person's mental illness. This criterion serves to
ensure that if the person is placed on an order, the relevant designated
mental health service has an obligation to provide the person with treatment.
Finally, the authorised psychiatrist must be satisfied there is no less
restrictive means reasonably available to enable the person to be treated,
including the person being treated on a voluntary basis.
The treatment criteria deliberately set a high threshold for initiating
compulsory treatment because compulsory treatment imposes serious limitations
on human rights.
Treatment order
If a person remains on a temporary treatment order at the end of the period of
the order, 28 days, the Mental Health Tribunal must conduct a hearing to
determine whether the criteria for a treatment order apply to the person.
The tribunal can make a treatment order if it determines that all the criteria
apply to the person.
The tribunal must also determine the setting of the order (either inpatient or
community) and the duration of the order: up to six months for an inpatient
treatment order, up to 12 months for a community treatment order and no more
than three months if the person is under 18 years of age regardless of the
setting. The shorter timeframe for people under
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18 years of age will ensure that there is greater oversight of compulsory
treatment decisions for young people.
At the end of the period of the treatment order, the authorised psychiatrist
may make an application to the tribunal for a further treatment order if the
criteria for a treatment order still apply to the person.
Part 4 of the bill also enables patients who are detained in a designated
mental health service to be granted leave of absence from the service and for
any patient to have the responsibility for their treatment transferred to a
different designated mental health service.
Part 5 of the bill governs the treatment of patients.
Division 1 of part 5 deals with capacity and informed consent.
Informed consent must be sought before treatment is given to a person.
The person must be presumed to have capacity to give informed consent unless
at the time the decision needs to be made the relevant clinician forms the
opinion that the person does not have the capacity to give informed consent.
The bill sets out the criteria for determining whether a person has capacity
to give informed consent and the necessary elements for a person to make an
informed decision to consent to mental health or medical treatment under the
bill.
Treatment
Division 2 of part 5 provides that patients, excluding people on assessment
orders and court assessment orders, must be provided with mental health
treatment.
The government believes this is necessary to ensure that patients receive
treatment at times when:
they do not have the capacity to give informed consent to treatment; or
they have capacity but do not consent to treatment and the person needs
treatment to prevent serious harm to the person or another person or to
prevent serious deterioration in the person's mental or physical health.
The authorised psychiatrist is responsible for the treatment of a patient.
The authorised psychiatrist must seek a patient's informed consent to
treatment before it can be administered.
Where a patient is unable to give informed consent or does not give informed
consent to a course of treatment, the bill authorises the authorised
psychiatrist to treat the person without consent. The authorised psychiatrist
must have regard to the person's views and preferences about the treatment and
the reasons for these views and preferences, including any recovery outcomes
that the person would like to achieve. These may be contained in the advance
statement. Consistent with the model of recovery-oriented mental health
practice, the person should be given information and involved in the decisions
to the greatest extent possible.
The bill also seeks to involve the nominated person, carers and other people
who are significant in the life of the patient in any decisions made by the
authorised psychiatrist.
The authorised psychiatrist must review and revise all treatment given to
patients on a regular basis.
Medical treatment
The bill establishes a regime to regulate consent to medical treatment for
patients who are unable to consent to general health care and specifies who
can consent to medical treatment in these circumstances.
Second psychiatric opinions
The bill provides a right for patients to seek a second opinion from a
psychiatrist. The role of the 'second opinion' psychiatrist is to assess the
patient and provide an opinion as to whether all the criteria for the
treatment order apply to the patient (except forensic patients) and to review
the treatment provided to the patient and recommend any changes the second
opinion psychiatrist considers appropriate in the circumstances.
The second opinion psychiatrist must provide a written report to the patient,
the authorised psychiatrist and other specified people, including the
nominated person and the carer.
The authorised psychiatrist is required to consider any second psychiatric
opinion report provided to them and may make changes to the patient's
treatment based on the recommendations.
It is intended that any changes would be discussed with the patient, the
nominated person and other specified people in the same way any decision about
treatment is made under the bill.
A patient will be entitled to apply to the chief psychiatrist for a review of
their treatment in the event that the authorised psychiatrist does not adopt
any or all of the recommendations contained in the second opinion report. The
chief psychiatrist may make any recommendations to the authorised psychiatrist
and the patient about the disputed treatment that the chief psychiatrist
considers appropriate in the circumstances.
Ultimately, the chief psychiatrist will have the power to direct an authorised
psychiatrist to make changes to a patient's treatment if alternative treatment
is more appropriate in the circumstances.
Electroconvulsive treatment
Electroconvulsive treatment (ECT) is an effective treatment for severe
depression and some other mental illnesses.
Nevertheless, feedback from the community consultation processes showed that
the community expects greater oversight of the performance of ECT on:
patients receiving compulsory treatment subject to an order under the bill;
and
people under 18 years of age.
ECT is a treatment rarely given to young people, but the clinical advice is
that it may be the most appropriate treatment in a limited number of
circumstances. It is for this reason the government has not prohibited its
use, but will require any ECT for people under 18 years of age to be approved
by the Mental Health Tribunal.
Any adult patient may give informed consent to ECT and receive the treatment.
Page 476
If a patient does not have capacity to give informed consent, ECT may only be
performed on the patient with the approval of the independent Mental Health
Tribunal following an application by the treating psychiatrist. The Tribunal
may only approve ECT if it is satisfied that there is no less restrictive way
for the person to be treated.
A psychiatrist may apply to the tribunal for approval to perform ECT on a
young person if the young person has given informed consent or, if they are
unable to give informed consent, a parent or guardian has given consent to the
ECT. The ECT cannot be performed unless the tribunal approves.
If the tribunal finds that a young person has capacity to consent to ECT and
has in fact given informed consent to the ECT, the tribunal must approve an
application to perform ECT.
If the tribunal finds that a young person does not have capacity to give
informed consent to ECT, it may only approve the ECT if it is satisfied a
parent or guardian has consented to the ECT and there is no less restrictive
way for the young person to be treated.
The tribunal cannot approve ECT if a patient has capacity and refuses to give
consent to ECT.
In any decision it makes, the tribunal must consider the person's views and
preferences about the ECT, the views of other significant people such as
carers, the likely consequences if the ECT is not performed and a range of
other factors described in the bill.
In all decisions about ECT, the patient or young person must be presumed to
have capacity unless it can be demonstrated that the person lacks capacity at
the time the decision needs to be made.
The government has been advised that the likely need for emergency or 'same
day' ECT is extremely rare because of the nature of the treatment and the way
it is administered. Accordingly provisions to allow emergency ECT without
consent of the patient have not been included in the bill. Nevertheless, it is
recognised that in some cases the commencement of a course of ECT may be
urgent. The tribunal will be able to expedite a hearing in response to an
urgent request.
Neurosurgery for mental illness
Neurosurgery for mental illness, which was previously known as psychosurgery,
is a surgical procedure performed on the brain to treat severe, incapacitating
mental illness.
In recent years, all applications to the current Psychosurgery Review Board
have been in relation to deep brain stimulation. Deep brain stimulation has
been used successfully over the past 15 years to treat neurologically based
movement disorders, such as Parkinson's disease, and is now being trialled and
is showing promising results for treating severe treatment-resistant
depression and severe obsessive compulsive disorders.
The bill provides that neurosurgery for mental illness may only be performed
on a person who has given informed consent and where the Mental Health
Tribunal has approved the performance of the treatment.
The tribunal must be satisfied that the neurosurgery for mental illness is
likely to remedy the person's mental illness or lessen the symptoms and
improve the person's quality of life.
No substitute decision-maker will have the authority to consent to
neurosurgery for mental illness on behalf of another person.
Part 6 of the bill regulates the use of restrictive interventions such as
bodily restraint and seclusion.
Bodily restraint and seclusion are highly intrusive practices that tragically
have been linked to injuries and deaths.
The government is committed to reduce and wherever possible eliminate the use
of bodily restraint and seclusion by designated mental health services.
To this end, the bill provides that these restrictive interventions may only
be used after all reasonable and less restrictive options have been tried or
considered and have been found unsuitable in the circumstances. It also
requires that any restrictive intervention must be stopped immediately when
the grounds for using the restrictive intervention no longer apply.
The regulation of restrictive interventions applies to all people receiving
mental health services in a designated mental health service, regardless of
the person's legal status under the bill or their age.
The bill extends the existing regulation of mechanical restraint to the use of
any physical restraint, such as the use of physical force like 'holding' to
limit a person's free movement. The regulation of physical restraint will
require services to examine why and how these practices are being used in
order to reduce and where possible eliminate them from clinical practice.
The bill will create greater accountability and oversight of the use of
restraint and seclusion by strengthening the role of the authorised
psychiatrist with respect to the authorisation and continued use of these
restrictive practices.
High levels of clinical care, monitoring and reporting will apply,
commensurate with the intrusiveness of these practices, for example people
being bodily restrained must be continuously monitored because of the risks
involved.
In addition, the bill requires that key people, such as the patient's
nominated person and the chief psychiatrist, are notified whenever restrictive
interventions are used.
Part 7 of the bill outlines the role of the secretary and redefines and
enhances the role of the chief psychiatrist to focus on providing statewide
clinical leadership to improve the quality and safety of public mental health
services.
The chief psychiatrist will monitor services and may conduct clinical practice
audits, clinical reviews and investigations.
Part 8 of the bill establishes the Mental Health Tribunal and sets out its
main functions. It also sets out the membership of the tribunal and the
procedures for appointment, removal and resignation of members.
At each hearing the tribunal will consist of three members: a lawyer, a
registered medical practitioner or psychiatrist and a member of the community.
Where the tribunal is considering an application for ECT or neurosurgery for
mental illness, it must include a psychiatrist to ensure the tribunal has the
Page 477
benefit of the specialist knowledge and expertise provided by psychiatrists.
The tribunal is intended to be an accessible, timely and responsive body.
Depending on their nature, proceedings can be initiated by a patient, the
patient's treating psychiatrist, a person at the request of the patient, a
guardian of the patient or a parent if the patient is under 16 years of age.
The person who is the subject of proceedings before the tribunal is entitled
to appear and to be represented by anyone of their choice.
The tribunal is expected to take a holistic approach when it makes
determinations and consider a range of factors, including the patient's goals,
preferences and aspirations and the views of other people who are significant
in the life of the patient, such as the nominated person and carers.
The tribunal will be bound by the rules of procedural fairness and may inform
itself on any matter as it sees fit. It is expected the tribunal will conduct
each proceeding as expeditiously and with as little formality and technicality
as possible in the circumstances.
The tribunal will take a solution-focused and recovery-oriented approach to
hearings. This will place the patient at the centre of the hearing, as an
active participant in the discussion and decision-making processes. The
patient will be supported to discuss their thoughts, views, preferences and
goals to enable problem-solving and promote self-determination. The overall
goal of these hearings is to support patient progress toward voluntary
treatment and recovery.
Part 9 of the bill continues the role of community visitors.
Public consultation identified strong support for community visitors to
continue to monitor the adequacy and appropriateness of mental health services
provided to people with mental illness.
Part 10 of the bill establishes the mental health complaints commissioner.
This is a new role being introduced in this bill. The commissioner will
provide an accessible, supportive and timely complaints mechanism that will be
responsive to the needs of people with mental illness. The commissioner will
have expertise in mental health service provision and the complexities of
compulsory treatment.
The bill enables the commissioner to consult with other persons or bodies,
such as the health services commissioner, in order to coordinate complaints
that straddle the mental health and general health sectors.
The commissioner may refer complaints or accept referrals from other bodies to
simplify the processes for people making complaints.
It is intended that the procedures of the commissioner will be flexible and
proportionate to the cause of the complaint and will provide appropriate
remedies. It is expected that most complaints can be resolved through informal
processes rather than resorting to formal investigation. However, the
commissioner will have a range of powers to investigate and take necessary
actions in more serious cases.
A key reform is that the bill will enable the commissioner to receive
complaints by families and carers on behalf of consumers, for example where
the patient doesn't have capacity to make a complaint or where the patient is
a child. This will ensure all patients can have their complaints heard and
addressed and be supported to participate in the complaints process.
It is recognised that complaints can assist public mental health services to
identify areas for improvement and contribute to better and more responsive
mental health services. The commissioner will have an important role to
identify, analyse and review quality, safety and other issues arising out of
complaints and to make recommendations for improvements to mental health
service providers, the chief psychiatrist, the secretary and the minister.
Part 11 of the bill provides for the detention, treatment, management and
discharge of security patients who are prisoners who require compulsory mental
health treatment.
Part 12 of the bill provides for the detention, treatment and management of
forensic patients.
Forensic patients are people who have been found not guilty of an offence or
unfit to plead because of mental impairment under the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 or a comparable law in another
jurisdiction and are being detained in a designated mental health service for
treatment.
Part 13 provides for the recognition of compulsory mental health treatment
orders and provisions in mental health laws of other Australian states or
territories. These provisions enhance access to mental health services across
state borders and ensure that no matter where a person is in Australia they
can receive responsive and timely mental health services.
Part 14 of the bill continues the Victorian Institute of Forensic Mental
Health, Forensicare, which has existed since 1998.
The role of the institute is to provide, promote and assist in the provision
of forensic mental health and related services in Victoria.
The bill updates the regulatory framework establishing the institute to
modernise the functions and governance arrangements.
Members of the board of directors will now be appointed by the Governor in
Council rather than the minister and the clinical director will be appointed
by the institute in the same way clinical directors are employed by other
health services.
These new arrangements will strengthen the independence of the institute and
its board of directors.
Part 15 of the bill sets out a number of procedural and operational matters.
Division 1 of part 15 establishes the confidentiality of health information
held by mental health service providers and then sets out the specific
circumstances when that health information may be disclosed to external
organisations and individuals. From the public consultation process it was
evident that the existing provisions in the Mental Health Act 1986 are complex
and difficult to understand. The bill will provide clear guidance about when
health information may be disclosed so that people with mental illness,
clinicians, families and carers can understand their rights and
responsibilities.
A person may consent to the disclosure of their health information. Consent
may be express or implied, but it is
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intended that implied consent should only be relied upon where that consent can
be confidently and reasonably inferred through the actions of the person.
The government recognises that there are certain circumstances where it will
not be appropriate or practicable to obtain consent to disclosure of health
information and these have been addressed in the bill.
The bill permits health information held by a mental health service provider
about a person to be disclosed to another health service provider in order to
assist them to provide services to the person. Many health services, such as
mental health service providers, drug and alcohol service providers and
primary care providers, share common clients. The capacity to share
information between providers promotes access to health services,
opportunities for early intervention and health promotion, and improved health
outcomes.
While it is preferable that consent to sharing of information should be
obtained, in some circumstances it will be necessary to share information to
ensure health services can be provided safely and effectively. This might be
necessary where the person is unable to give consent or to prevent serious
harm to the person or another person or to prevent serious deterioration in
the person's mental or physical health.
The bill creates a scheme to regulate the collection, use and disclosure of
health information through an electronic health information system. It
authorises members of staff of mental health service providers to enter
information in an electronic health information system in the knowledge that
other services may collect and use that information to provide mental health
services to an individual. The bill limits access to an electronic health
information system.
A person must not collect or use, or attempt to collect or use, health
information in an electronic health information system unless it is reasonably
required by a mental health service provider to provide mental health services
to a person.
The bill will permit a mental health service provider to disclose a person's
health information to a friend, family member or carer in 'general terms'. It
is intended that only very limited information may be disclosed under this
exception to confidentiality. For example, it would extend to telling a
telephone caller that an inpatient is well enough to receive visitors or the
disclosure of limited information, such as diagnosis, during family
psycho-education sessions.
The government recognises that carers need adequate information to allow them
to perform their caring role.
The bill seeks to balance a patient's right to privacy and the carer's need
for information in order to provide sufficient support or care. It is
recognised that this support and care can be crucial to the ongoing wellbeing
of both the patient and the carer.
In a significant advance for carers and families, the bill sets out the
circumstances when information can be shared with carers if a patient has not
consented to the information sharing, or does not have the capacity to
consent. Currently, clinicians must make a complex and difficult judgement
about what information needs to be shared. The resulting confusion has often
led to a failure to appropriately share information, to the detriment of both
patients and their families and carers.
The bill enables health information to be disclosed to a carer where the
disclosure relates to a patient and the health information to be disclosed is
reasonably required by the carer to provide care to the patient or to
determine the nature and scope of the care to be provided and to make the
necessary arrangements in preparation for that role.
Division 3 of part 15 sets out powers and functions for the apprehension and
transport of people with mental illness or the appearance of mental illness in
prescribed circumstances. The bill includes specific powers to enter premises
to enable a person to be taken to a designated mental health service. In
addition, it authorises the use of sedation and bodily restraint where it is
necessary to prevent serious and imminent harm to the person or another
person.
Consistent with the objectives of the bill, sedation and restraint may only be
used after all reasonable and less restrictive options have been tried or
considered and have been found to be unsuitable to ensure safe transportation.
The bill enables a police officer to apprehend a person who appears to have a
mental illness so as to prevent serious and imminent harm to the person or
another person.
It is intended to give police officers maximum flexibility about where they
can take a person to be examined. In practice police will often take an
apprehended person to the emergency department of a public hospital to be
examined by a medical practitioner.
The bill will support this existing practice by enabling a police officer to
take an apprehended person to a public hospital, denominational hospital,
privately operated hospital, or public health service within the meaning of
the Health Services Act 1988. The police officer will then be able to release
the person from police custody into the care of the relevant hospital or
health service. The hospital or health service must then arrange for the
person to be examined as soon as practicable by a registered medical
practitioner or mental health practitioner. This is intended to allow police
to return to their other duties as soon as practicable without the need to
wait until the examination has been completed.
Division 5 of part 15 of the bill provides for codes of practice. Codes of
practice will provide practical guidance to any person or body exercising
powers or performing functions or duties under the bill to promote best
practice.
The codes of practice will provide a greater level of detail than would
generally be included in legislation or regulations and can be more readily
updated to reflect new developments in interpretation of the law and clinical
practice.
It is expected that codes of practice will also be used by clinicians, people
with mental illness, families and carers to understand the application of the
bill.
Part 15 provides for a number of other miscellaneous matters.
Part 16 of the bill provides repeal and transitional provisions.
Part 17 of the bill makes amendments to the Sentencing Act 1991, the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 and other acts.
The options available to the courts have been updated to achieve greater
consistency with other orders made under the bill and simplified to encourage
increased usage by the courts.
This is a substantial piece of legislation, which will make a fundamental
difference to people living with mental illness, their families and carers and
the broader community.
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The government recognises the magnitude and significance of these reforms and
is committed to a review of the legislation five years after commencement to
ensure that Victoria's mental health legislation keeps pace with innovation
and clinical best practice developments.
This bill is the result of the hard work of many people. I would particularly
like to acknowledge and thank the members of the community consultation panel,
the late Mr Ben Bodna, AM, Mr Julian Gardner, Ms Dominique Saunders and Mr
Wayne Schwass, as well as the Mental Health Act reform expert advisory group
and the consumer and carer peak organisations, the Victorian Mental Illness
Awareness Council and the Victorian Carers Network. I also want to recognise
the dedication of the members of the Mental Health Act reform team in the
Department of Health and specifically the manager of that team, Ms Emma
Montgomery.
In conclusion, the reforms contained in the bill will result in significant
changes to Victoria's mental health system and will provide important
opportunities to reinvigorate the service system and improve outcomes for
people living with mental illness.
I commend the bill to the house.
Debate adjourned on motion of Mr NOONAN (Williamstown).
Debate adjourned until Thursday, 6 March.