Page 3849 - Week 12 - Thursday, 30 October 2014
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The bill includes major changes to the way treatment is provided to people with mental illness. These changes will increase a person’s opportunity to have a voice in deciding their own treatment. A basic issue considered in the review of the act was how to include consideration of decision-making capacity in the act. This affects the operation of mental health orders and many other treatment decisions under the act.
Decision-making capacity is being introduced into mental health legislation in jurisdictions across Australia and internationally but is quite new as a formal criterion. The change is led by human rights advances, mainly the United Nations Convention on the Rights of Persons with Disabilities and the ACT Human Rights Act. A distinct project reviewing the implications of including decision-making capacity added nearly 24 months to the overall review process.
Other major changes—advance consent directions and nominated persons, increased inclusion of mental health carers in treatment planning—required similar careful consideration to balance human rights considerations and to ensure the need for people to have an increased voice in treatment is balanced with the ability of services to continue to deliver safe and effective care.
I would like touch on a few of the important changes included in this bill. Under the bill, decision-making capacity will become the main criterion for deciding whether a person is placed on an involuntary treatment order. Decision-making capacity has always been the basis for deciding guardianship orders. Assessment of capacity is a well-established process. Across Australia and internationally, jurisdictions are moving to make capacity the main criterion for mental health orders.
It is important to note that a person’s risk to others or themselves will continue to be considered. However, the risk will have to be of a serious nature if the person is to be placed on an involuntary order when they are assessed to have capacity. The effect of the change is expected to be that more people will make their own decisions about treatment, and in most cases involuntary treatment orders will be made on criteria similar to guardianship orders, helping to bring mental health treatment into the mainstream.
The bill also includes advance consent directions for people with a mental illness. Advance consent directions are an agreement made with the treating team where the person is well and has capacity, setting out the treatment they want and do not want if or when they become unwell. Advance consent directions are similar to health directions for medical treatment.
In the ACT advance consent directions are negotiated with the treating team, ensuring that they will provide for a clinically effective treatment. However, if a treating team considers that in the particular circumstance the treatment agreed is inappropriate or unsafe and the person lacks the capacity to agree to a change, the ACAT can make a ruling.
The bill includes provisions for a person with mental illness to appoint a nominated person who knows their wishes and can speak and advocate for them. A nominated
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