Voluntary treatment, care and support

Contributed by Dr Stephen Tang, Lecturer, ANU College of Law and current to March 2022.

As discussed in the previous section, the main purpose of the Act is to provide a legal framework for the authorisation and safeguarding of involuntary mental health treatment, care and support.

The Act nonetheless contains some important provisions for people seeking voluntary mental health treatment, care and support. While there are many types of voluntary mental health care, the Act generally is only relevant to treatment, care and support provided by ACT Health (that is, public mental health services in an inpatient facility or community-based mental health service), or at Calvary Hyson Green (which is the only private psychiatric facility in the ACT).

To be clear, the Act generally does not apply to private mental health services (such as seeing a psychiatrist or psychologist on a private or Medicare-subsidised basis), or accessing mental health services provided by other community organisations. The regulation of these services may be governed by other ACT and national legislation, including the Health Profession Regulation National Law (ACT), which for now is beyond the scope of this chapter.

Principles, Rights and Safeguards

The Act contains less detail about voluntary treatment than some other Australian states and territories. This may reflect the policy position that voluntary mental health care should not be different to any other other kind of health service provided by ACT Health. Just as there is no extensive legislation about how someone receives treatment for their arthritis, the Act is similarly quiet about voluntary mental health care. While there are advantages and disadvantages to this approach, which are best discussed elsewhere, the starting point is that any person in the ACT is able to seek voluntary treatment, care and support through ACT Health’s public mental health services. Most mental health care provided by ACT Health, and other public mental health services across Australia, is in fact provided for voluntary patients (see AIHW, Mental Health Services in Australia, Restrictive Practices).

The Act has more to say about protecting general human rights and freedoms when such treatment is not based on willing and informed consent, rather than granting specific rights in relation to voluntary treatment (such as the right for a person to be admitted voluntarily, or the ability to review the refusal of a voluntary admission. Contrast this, for example, with the position in NSW: see Chapter 2 of the Mental Health Act 2007 (NSW)).

The principles contained in section 6 of the Act are relevant to public mental health services in the ACT which accept people on a voluntary basis. These principles apply expressively, which means that they are intended to influence the culture and behaviour of ACT Health mental health services regardless of the legal status of the person. For example, these principles affirm that:

• A person with mental illness or mental disorder has the same rights and responsibilities as other members of community, and is to be supported to exercise those rights and responsibilities without discrimination;
• Mental health services work to bring about the best therapeutic outcomes for the person and promote the person’s recovery, and that any actions taken must be therapeutic or diagnostic in nature for the benefit of the person, and not just for the benefit of someone else;
• People have the right to access the best available treatment, care or support relating to the person’s individual needs; and
• Mental health services provide evidence-based assessment, treatment, care and support in a way which respects the person’s informed consent, decisions and preferences.

Before receiving voluntary treatment, care and support, a person must still be informed of their rights, such as the right to seek legal assistance, the right to obtain a second opinion, and the right to make an Advance Agreement or Advance Consent Direction and to appoint a Nominated Person (s 15). The person must also be given access to information (such as an information sheet containing a summary of their rights) and assistance which helps a person to promote or protect their rights.

Hidden away at the back of the Act, section 270 makes it clear that a voluntary patient is free to:

• Refuse to receive particular treatment, care or support at a mental health facility; and
• Discharge themselves from the facility.

Promotion of Voluntary Treatment

The Act also encourages people to receive treatment, care and support voluntarily even when they become unwell. This is done through the creation of Advance Agreements and Advance Consent Directions, which are documents which set out the person’s intentions and wishes for their treatment and care ahead of time. If a valid AA or ACD is in place, treatment can be given to the person in accordance with their previously stated wishes when they do not have decision-making capacity, but only if they do not resist that treatment.

Transition from Voluntary to Involuntary Status: Emergency Detention

There are occasions when a person presents voluntarily to a mental health facility but because of their distress or level of risk, they require emergency detention as an involuntary patient. This can occur under section 81(2) of the Act, which enables a doctor or Mental Health Officer at an approved mental health facility to detain a person until an initial assessment is carried out to see whether emergency detention should be authorised. In this way, a voluntary patient can transition to being an involuntary patient.

Similarly, if a person is being treated as an involuntary patient under the emergency detention provisions (an ED3 or ED11) or a Mental Health Order (a PTO or CCO) but no longer meets the criteria for involuntary treatment, care and support, they can transition to being a voluntary patient. This can occur for example, if after treatment the person regains the decision-making capacity to consent to treatment, and freely provides that consent.

For a ED3 or ED11, the treating team must revoke the authorisation of involuntary detention as soon as they are satisfied that the person does not meet the criteria for being detained, For a PTO or CCO, the treating team must inform the ACAT, which will generally revoke the Order. The person may then receive treatment, care and support as a voluntary patient, if this is available and mutually agreed upon.

Assessment Orders

As there is no express right in the Act for a person to receive mental health treatment voluntarily, it can sometimes be difficult to be assessed and admitted to hospital for treatment even if this is what the person feels is needed. If a person believes that they require treatment (even on an involuntary basis), one mechanism available in the Act to facilitate an admission is for the person to make an application to ACAT for an Assessment Order (AO) (see Chapter 4 of the Act).

Anyone can apply for an AO in relation to themselves, if they believe that:

• They have a mental illness or mental disorder; and
• Because of the mental illness or mental disorder,
  ○ They are unable to make reasonable judgments about matters relating to their own health or safety; or
  ○ They are unable to do something necessary for their own health or safety; or
  ○ They are likely to do serious harm to others.

(See s 33 (applications by the person themselves). An application can also be made for an AO in relation to someone else: see s 34).

The application can be made by completing ACAT’s Assessment Order Application Form, available from the ACAT Website, together with the ACAT Information Sheet for Applications under the Mental Health Act 2015 (which contains names and contact details of important people involved in the person’s life and treatment, care and support). This application must be filed with the ACAT Registry. A hearing will then be scheduled before a presidential member of ACAT (s 185(1)(a) Mental Health Act).

An AO may be granted if ACAT is satisfied that, based on information contained in the application:

• The person appears to have a mental disorder or mental illness; and
• Either of the following applies:
  ○ The person's health or safety is, or is likely to be, substantially at risk; or
  ○ The person is doing, or is likely to do, serious harm to others (s 37 Mental Health Act).

If ACAT makes an AO, it will direct a person to attend for a comprehensive psychiatric or psychological assessment, which informs the treating team and Tribunal about what steps should be taken next (s 40 Mental Health Act). The AO also directs the approved mental health facility (or another place specified by ACAT) where the assessment is to be conducted to admit and assess the person. The admission may be for a period of up to 7 days from the date that the order is made (with the possibility of an extension of another 7 days) (s 42 Mental Health Act), although ACAT can also direct that the assessment be conducted in another place on an outpatient basis. The person will be required to attend the facility and is required to stay there until the assessment has been completed. A copy of the assessment report must be provided to the person within 7 days of completing the assessment (s 48 Mental Health Act).

As such, the AO can be sought voluntarily but the person is then assessed as an involuntary patient. After reviewing the results of the comprehensive assessment, the ACAT may decide whether or not it should continue the involuntary treatment by making a Mental Health Order. However, a Mental Health Order cannot be made if the person is consenting to the proposed treatment, care or support. At this point, the availability of further voluntary treatment, care and support depends as an inpatient on the current level of demand for mental health services and the whether the person meets the admission criteria for the service.

Correctional Patients

Chapter 8 of the Act allows for people who are being detained at an ACT correctional facility (i.e. the Alexander Maconochie Centre (AMC)) or youth detention place (i.e. the Bimberi Youth Justice Centre (BYJC)) to be transferred to an approved mental health facility to receive mental health treatment, care or support.

Under the Act, people who are transferred from a correctional setting to receive treatment, care and support are known as correctional patients. Even though they are ordinarily detained in custody, they receive treatment, care and support as a voluntary patient (s 136(1)(b)). That is, correctional patients cannot be subject to a PTO or CCO, and must have the decision-making capacity to consent to treatment, care and support and freely give that consent. A correctional patient may therefore also refuse treatment at any time.

If involuntary treatment is needed for a detainee at AMC or BYJC, they may also be transferred under other provisions of the Act (See Corrections Management Act 2007 s 54 and Children and Young People Act 2008 s 109). In this case, the person would be subject to both an Mental Health Order or the emergency detention provisions of the Act (as relevant) as well as the conditions of their correctional custody.