Treatment of patients

Contributed by ShaylaStrapps and LukeCassidy and current to 27 July 2018

The manner in which a person can be provided treatment will depend on what type of patient the person is for the purposes of the Act. This can be divided in to two categories:

1. Voluntary Patient; and
2. Involuntary Patient

Treatment for Voluntary Patients

A voluntary patient is a person who is either an inpatient at an authorised hospital or receiving treatment through an outpatient facility without being compelled to do so under either the provisions of the Mental Health Act or other legislation. In order for any treatment to be provided to a voluntary patient, that patient must give informed consent.

Informed consent must be given freely and voluntarily. A failure to offer resistance does not by itself mean that informed consent has been given. Before consent can be given, the patient must be provided with a clear explanation of the treatment that contains sufficient information to enable the person to make a balanced judgement. This includes information regarding alternative treatment options available and any inherent risks involved with that treatment.

Consent to treatment can be withdrawn at any time. However, a psychiatrist treating a voluntary patient in hospital can make an order for that person to be provided treatment involuntarily provided they meet the criteria to do so. See below for further information on involuntary treatment.

Involuntary Patients

An involuntary patient is a person who is subject to involuntary treatment orders. An involuntary treatment order is an order made by a psychiatrist that enables a person to be provided treatment without their consent. There are two types of involuntary orders: inpatient treatment orders (ITO) and community treatment orders (CTO).

An ITO enables a person to be detained at an authorised hospital to be provided treatment as an inpatient whereas a CTO requires that a person in the community must continue to receive treatment without their consent. Before any involuntary order can be made, a person must meet all five of the criteria prescribed under the Act. The criteria are:

a) that the person has a mental illness for which the person is in need of treatment;

b) that, because of the mental illness, there is —

c) that the person does not demonstrate the capacity to make a treatment decision about the provision of the treatment to himself or herself;

d) that treatment in the community cannot be reasonably provided to the person;

e) that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making an involuntary treatment order.

Under the Act, there is a presumption that an adult has the capacity to make decisions about his or her treatment. For an involuntary treatment order to be made, the person must be assessed to have lost this capacity. In order to assess capacity, it must be determined whether the person is able to do the following:

a) Sufficiently understand information regarding the person’s proposed treatment; and

b) Understand matters involved with making a treatment decision; and

c) Understand the effect of the treatment decisions; and

d) Weigh up the factors referred to above for the purpose of making a treatment decision; and

e) Communicate the treatment decision in some way.

Treatment pursuant to an involuntary order may only be provided by an authorised hospital. An authorised hospital is either a public hospital that has been authorised to treat involuntary patients or a private hospital the license of which has been endorsed to treat involuntary patients.

Process for making an involuntary order

An involuntary order may only be made by a psychiatrist following an examination of the patient. While there are few formal requirements for what constitutes an examination for the purposes of the Act, the examination must:

• Be conducted while the psychiatrist and patients are in each other’s physical presence. An exception can be made for examinations to be conducted with audio-visual equipment where a medical practitioner is also in the same room as the patient; and
• Be conducted in the least restrictive way and least restrictive environment practicable.

An order may be made authorising the person’s detention for 24 hours so that an examination can be carried out. This detention period can be extended up to 72 hours if further observation is required. However, if a psychiatrist either does not carry out an examination within the 24 hours, or make an order to extend the observation period, the person can no longer be detained and is free to leave the authorised hospital.

Once a psychiatrist has carried out the examination, they must make one of the following orders:

• An inpatient treatment order;
• A community treatment order;
• An order to continue detention for further examination; or
• An order that the person cannot continue to be detained.

All orders must be made in the approved form that notes the date and time it was made, the reasons for making it and the name and qualification of the psychiatrist.

Referral for Examination

While a medical practitioner cannot make an involuntary order, they can refer a person they suspect may need an order for examination. Before a referral can be made, the medical practitioner must have examined the patient themselves. The patient must be taken to an authorised hospital as soon as practicable following a referral being made. An order can be made to detain the person for up to 24 hours in order to take the person to an authorised hospital.

Transport Orders

When making a referral, the medical practitioner may make a transport order to enable the person to be taken to an authorised hospital for examination. This order can only be made if there are no other safe means of taking the person reasonably available. A transport order authorises a transport officer, or a police officer, to do the following:

• Apprehend the person;
• If the purpose is apprehended, transport the person to the hospital or place specified in the order as soon as practicable; and
• Detain the person until the first of these things occurs:
  • The person is received into the hospital; or
  • The transport order expires.

A transport order is usually carried out by a transport officer. It will only be carried out by a police officer in circumstances where there is a significant risk of serious harm to either the person or another person or there would be a delay in waiting for a transport officer and the effect of that delay poses a significant risk of harm.

A transport order must specify the length of time it remains in effect for. The maximum period is 72 hours, unless the person is outside of the metropolitan area, in which case it is 144 hours.

Community Treatment Orders

In many circumstances, a person is able to be involuntarily treated in the community rather than detained in a hospital. For a person to be placed on a CTO, they must meet the same criteria as that of an ITO and be suitable for treatment in the community.

Before an order can be made, the psychiatrist must be satisfied that treatment in the community would not be too great a risk to the person’s health and safety and that suitable arrangements can be made for a psychiatrist to supervise the patient.

Terms of a CTO

Every CTO must contain the following terms:

a) the name of the psychiatrist who is the supervising psychiatrist under the order;

b) a requirement that the involuntary community patient comply with all of the supervising psychiatrist’s directions to the patient about treatment to be provided to the patient under the order;

c) the name of the medical practitioner or mental health practitioner who is the treating practitioner under the order;

d) the date and time when the order is made;

e) the date and time when the order comes into force, which must be within 7 days after the date and time when the order is made;

f) the treatment period for which the order remains in force as specified under subsection (2);

g) a requirement that the involuntary community patient notify the supervising psychiatrist or treating practitioner of any change in the patient’s residential address;

h) a requirement that the involuntary community patient notify the supervising psychiatrist or treating practitioner of any interstate or overseas travel by the patient

Each order can last for a period of up to 3 months, however it can be renewed by the supervising psychiatrist following an examination prior to expiry.

Breaching the Terms of the CTO

If a patient does not comply with the terms of the CTO, the supervising psychiatrist may take the following steps:

1. Issue a Notice of Breach. This notice will inform the patient of how they are breaching the order, what needs to be done to correct it and in what timeframe this must be done.
2. If the breach continues, the patient can be issued with an Order to Attend. This order will specify a time and place for the patient to attend in order to receive treatment.
3. If the patient does not attend at the specified time, the psychiatrist has the following options:

At any time while the CTO is still enforce, the supervising psychiatrist may make an inpatient order if satisfied that the patient meets the criteria for such an order. Once admitted, a psychiatrist at the authorised hospital must confirm this order within 72 hours.

Regulation of Treatment

An involuntary order only allows for the provision of psychiatric treatment without a person’s consent. It does not permit the treatment team to treat physical illness, other than in cases of emergency. However, certain invasive treatments require further approval before they can be provided to an involuntary patient.

Electroconvulsive therapy (ECT) is treatment that involves applying electric current to specific areas of a person’s head to produce a generalised seizure that is modified by anaesthesia and the use of a muscle relaxing agent. ECT can be provided to voluntary patients who provide informed consent. For involuntary inpatients, the supervising psychiatrist must first be given approval by the Mental Health Tribunal (MHT) before the treatment can be provided. Please see ‘Review by the Mental Health Tribunal’ in the Patient’s Rights chapter for more information.

Psychosurgery is treatment that involves the use of surgical techniques or procedures to create a lesion in a person’s brain with the intention of permanently altering the person’s thoughts or behaviour. Psychosurgery can only be performed with the person’s consent and the approval of the MHT. Psychosurgery cannot be provided to an involuntary patient.

Certain treatments are completely prohibited. These include deep sleep therapy, insulin coma therapy and insulin sub coma therapy. Performing any of these treatments is a crime that carries a penalty of up to 5 years imprisonment.

Under the Act, treatment means the provision of psychiatric, medical, psychological or psychosocial intervention intended to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness. Treatment that does not meet this definition cannot be provided without consent other than in cases of emergency.

Seclusion and Bodily Restraint

The use of restrictive practices such as seclusion and bodily restraint is not considered part of psychiatric treatment that can be provided under an involuntary order. If such methods are required while a person is an involuntary inpatient, the treating team must follow a separate process.

Seclusion is when a person who is being treated at an authorised hospital is confined to a room or area within the hospital and is not allowed to leave. Seclusion must be authorised by either a medical practitioner, mental health practitioner or a person in charge of the ward. An order should be made in writing, however oral authorisation can be given in an emergency.

An order authorising seclusion can only be made in a situation where the person needs to be confined to prevent the person from physically injuring themselves, another person or causing serious damage to property and there is no less restrictive way of preventing the injury or damage. A person can only be secluded for a maximum of 2 hours at a time, though the authorised person can extend this period for a further 2 hours if the person still meets the criteria. The order can also be revoked at any time during this period.

Bodily Restraint refers to the physical or mechanical restraint of a person who is being provided treatment. Mechanical restraint involves the use of a device to restrain a person, common examples being a harness or strap. Similar to seclusion, bodily restraint must be authorised before it can be carried out. There should be a written order authorising the restraint, though oral authorisation can be given in an emergency.

Bodily restraint can only be authorised when the patient needs to be restrained to either provide the patient treatment, to prevent the person from injuring themselves or another or prevent the person from causing serious damage to property. It must be the least restrictive method and not pose a significant risk to the patient’s health and safety. The force used to restrain the patient must be the minimum required in the circumstances and the patient must be treated with respect and dignity during the process.

Bodily restraint can be authorised for a maximum period of 30 minutes, though this can be extended for a further 30 minute period if deemed necessary. The order can be revoked at any time during this period.

Advance Health Directives and Powers of Guardianship

There are alternative ways that a person without capacity can consent to treatment. An advance health directive (AHD) is a document that outlines treatment decisions that a person consents to. It can be created at any time while a person has the capacity to do so. If a person has an advance health directive after losing capacity to consent, treatment should be provided in accordance with that document.

A Guardian is a person that is given the power to make specific decisions on another person’s behalf. This may include medical treatment decisions. There are two methods for appointing a Guardian. A person may create an Enduring Power of Guardianship, which is a document that grants decision making powers to someone else in the event a person loses capacity to make their own decisions. Alternatively, an application may be made to the State Administrative Tribunal (SAT) to appoint a Guardian.

Just because a person has an AHD or Guardian does not mean that a person cannot be made an involuntary patient. If the psychiatrist believes that all the criteria for involuntary treatment is met and these do not present a less restrictive option for treatment, an order can still be made. A psychiatrist is required to take in to account an AHD or the views of a Guardian of an involuntary patient but is not bound by them.