The Law Handbook 2024

Chapter 8.4: Mental illness 825 • the name and contact details of any support persons to be informed they are a patient, including any nominated support person or advocate. A person can make an advance statement of preferences at any time. A form is available on the Department of Health’s website: www.health.vic. gov.au/mental-health-and-wellbeing-act-handbook/ advance-statements-of-preferences. The statement must be: • in writing; • signed and dated by the person making it; • witnessed by another adult and include a statement by the witness stating that they believed the person making the statement understands what it is, understands the consequences of making it and how to revoke it, and the person appears to have made the statement of their own free will. They must also state they observed the person signing it and that they are an adult. An advance statement of preferences cannot be amended after it is signed. If a person’s treatment preferences change, they must make a new statement. The MWHA stipulates that an authorised psychiatrist must take into account a patient’s advance statement of preferences when making a treatment decision (s 89 (4)(c)). All mental health staff should be aware of the preferences of any patient they are providing treatment or care to, and document their consideration of these preferences throughout the period of treatment, care and support. Anauthorisedpsychiatristmayonlymakeatreatment decision that is not in accordance with the treatment preferences expressed in a patient’s advance statement of preferences if they are satisfied that the patient’s preferred treatment is either not clinically appropriate or is unable to be provided at the designated mental health service despite all reasonable efforts being made to provide the preferred treatment (s 90)). They must inform the patient as soon as practicable, both orally and in writing, and provide written reasons within 10 business days after the decision is made. Decision-makers will also have regard to an advance statement of preferences in making a range of other decisions, including when making a TTO or TO; making a treatment decision for a person, giving or reviewing a second psychiatric opinion; granting a leave of absence; authorising restrictive interventions; or disclosing a person’s health information without consent. An advance statement that was made before 1 September 2023 and has not been revoked will be treated as an advance statement of preferences under the MHWA and will remain in effect unless it is revoked or a new statement is made. Nominated support person A nominated support person is appointed by a person experiencing mental illness (pt 2.6 MHWA). The role of a nominated support person takes effect when the person who appointed them becomes a patient under the MHWA. A nominated support person for a patient will: • advocate for their views and preferences, including those expressed in an advance statement of preferences; • support them to make and participate in decisions; • advocate for any appropriate supports that would assist them to communicate and participate in decision-making; • support them to understand information and decisions; • support them to communicate their views, preferences, decisions, questions or concerns; and • support them to exercise any rights they have under the MHWA. A designated mental health service must take all reasonable steps to find out whether a person has a nominated support person and take all reasonable steps to support the nominated support person to undertake their role. A nominated support person must perform their role in a way that supports a constructive relationship between the patient and the designated mental health service personnel. A designated mental health service should consult with a nominated support person in a number of specific circumstances such as when an authorised psychiatrist is contemplating the making of a TTO, making an application to the Mental Health Tribunal for a TOor making a treatment decision for the patient. A person can appoint a nominated support person at any time, provided they understand what that means and the consequences of making someone their nominated support person. A nomination must be: • in writing and state the name and contact details of the nominated support person;