Every jurisdiction in Australia, except the Northern Territory, has been reforming its mental health laws in recent years. This is because governments have recognised that treatment for mental health should be subject to more modern regulation.
The reorganisation has been partly driven by requirements under the United Nations Convention on the Rights of Persons with Disabilities, such as the need for states to have laws that respect a person’s decision-making capacity.
While the scope of Article 12 of the Convention is debated, it at least requires the law to respect treatment decisions made by people with mental illness as much as possible. This includes providing people with support they may need to make these decisions.
In this modernisation process, one constant has remained. That is the need for safeguards when making serious decisions about treatment for mental illness. However, recent Queensland reforms – due to take effect in March 2017 – do not include these legislative safeguards for some people.
These proposed reforms are different from the current law, and we worry such changes will leave some people at risk of receiving inappropriate treatment.
Protection for those with mental illness
The kinds of safeguards we commonly see in mental health legislation include: strict criteria that have to be met before specific treatment can be provided; independent oversight of medical decision-making by an impartial tribunal; regular external review of treatment decisions by that tribunal; and a right of appeal where a person receiving treatment isn’t satisfied with that review.
Treatment authorised under mental health laws can sometimes be administered by force and include detaining a person in a locked ward that they cannot leave. These place significant restrictions on a person’s liberty and personal security, so would need careful scrutiny.
This is why, in New South Wales for example, a person receiving involuntary treatment must meet the criteria of being “mentally ill” – which includes a judgement the person or others need protection from serious harm – and have their situation reviewed by the Mental Health Review Tribunal, among other safeguards.
If the mental health treatment is inappropriate – for example, if a person is kept in hospital and treated against their wishes when they could receive treatment in the community – and the rights and interests of the person have been ignored or overlooked, safeguards become particularly important.
Perhaps the most notorious example of inappropriate mental health treatment is the deep sleep therapy provided in the 1960s and 70s at Chelmsford private hospital in NSW. This involved medicating patients to keep them in a comatose state for days or weeks, sometimes with electroconvulsive therapy. A number of patients died during or shortly after this treatment.
Why Queensland’s laws are lacking
Broadly, Queensland’s new Mental Health Act authorises treatment for a mental illness in two main ways.
The first is under what is called a “treatment authority”. This is where a doctor can authorise mental health treatment when certain conditions are met. The second is through the adult guardianship system, which is the legal framework that authorises medical treatment generally for adults who lack the capacity to make their own decisions.
The first group who receive treatment under a treatment authority have the benefit of some legislative safeguards (although whether these safeguards are adequately reflected in the Queensland legislation can be contested).
But the second group does not have these safeguards. This may not be problematic for more run-of-the-mill decisions such as routine medication. But where there are significant decisions to be made that may involve coercion or deprivation of liberty, this second group of people can have these decisions made in private and without external impartial review.
Let’s use a brief example to illustrate how these reforms could work. Greg is a 35-year-old man with a mental illness who lacks the capacity to make decisions for himself. His 65-year-old mother, Mary, is the main person in his life. Before his mental illness, Greg appointed Mary as his substitute decision-maker to decide for him when he lacks capacity (called an attorney in Queensland).
Greg is now difficult to live with and can sometimes be explosive. Mary is deferential to Greg’s psychiatrist about how best to manage his illness. As an attorney, Mary would be permitted by the Mental Health Act to authorise treatment for Greg’s mental illness.
One risk in this scenario is that Mary’s deference to Greg’s psychiatrist (and potential lack of medical knowledge) may mean very significant clinical decisions are not questioned. Another risk is Mary and the psychiatrist taking a path that makes Greg easier to manage – for example, by over-medicating him even though that may not be what is best for Greg.
Poor decisions can happen
We don’t assume all family members or psychiatrists would not be good advocates for patients. But poor decisions can happen because they are made in private, and there is no legislative requirement for external scrutiny.
This can mean outside of the family and treating team, there are no legislative triggers for others to be aware treatment is even being given. This is quite different from people receiving treatment under a treatment authority, because here, decisions could be reviewed by an external independent tribunal.
Some progress was made recently with the Queenland’s Chief Psychiatrist releasing an approved-in-principle policy under the Act dealing with decisions about mental health treatment made by guardianship substitute decision-makers. This policy attempts to address some of the safeguards missing in the legislation, but at least two problems remain.
The first is that the processes established under the policy are not as robust and protective of rights as the safeguards contained in the legislation that regulate treatment authorities.
The second is policy, even if it grants comparable protections, is no substitute for legislative safeguards. Policies can easily change and are not enforceable in the same way as a structured decision-making process embedded in legislation.
If the Queensland Mental Health Act comes into force as it now stands, more will be asked of the Public Guardian (and perhaps the other guardianship entities) with a slice of mental health decisions being moved into the adult guardianship realm.
There is a window to tackle this now as the implementation of these reforms next year is now being planned. Failure to do so risks the rights and interests of people with mental illness.
Ben White receives funding from the Australian Research Council and the National Health and Medical Research Council.
Christopher Ryan, Lindy Willmott, and Sascha Callaghan do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.
Authors: Ben White, Professor of Law and Director, Australian Centre for Health Law Research, Queensland University of Technology