The Law Handbook 2024

828 Section 8: Disability, mental illness and the law Treatment under a compulsory treatment order The MHWA requires that a person who is subject to an order for compulsory treatment (such as a TTO or a TO) is to be given treatment for their mental illness. While a person’s informed consent must always be sought, the MWHA 2022 permits an authorised psychiatrist to make a treatment decision for a patient who does not have capacity to give informed consent or who has not given informed consent if certain requirements are met. The authorised psychiatrist can make a treatment decision for the patient if the authorised psychiatrist is satisfied that the treatment is clinically appropriate; and there is no less restrictive way for the patient to be treated other than the proposed treatment. An authorised psychiatrist cannot make a treatment decision about electroconvulsive treatment or neurosurgery for mental illness for a patient. These treatments cannot be provided without consent unless authorised by the Mental Health Tribunal. In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must consider the patient’s views and preferences (including consulting a nominated support person and an advance statement of preferences), alternative treatments, consequences if treatment is not provided, and the view of certain family members, carers and supporters. These obligations are fulfilled if reasonable attempts are made to find out the views, even if not obtained. What is reasonable in the circumstances will vary on a case-by-case basis. See below for more information on compulsory treatment orders. Decision-making principles Consistent with the focus on individualised treatment, including for compulsory patients, the MHWA sets out explicit obligations on public mental health and wellbeing services and psychiatrists when making decisions about mental health treatment, even when a person is already a compulsory patient (pt 3.1MHWA). The MHWA has introduced new rights-based decision-making principles for treatment and interventions. Decision-makers must give proper consideration to these principles when making decisions in relation to a patient’s assessment, treatment, or the use of restrictive interventions. The decision-making principles must be considered alongside the mental health and wellbeing principles. In particular the principles that: • people’s rights, dignity and autonomy are to be promoted and protected; • mental health andwellbeing services are to be given to consumers with the least possible restriction of a person’s rights, dignity and autonomy and with the aim of promoting their recovery and full participation in community life. There are five decision-making principles: • Care and transition to less restrictive support Where compulsory assessment and treatment is given to a person, it must be with the aim of promoting the person’s recovery and transition to less restrictive treatment, care and support. Treating teams are obligated to provide these services to a compassionate, safe and high quality standard. • Consequences of compulsory assessment and treatment and restrictive interventions Compulsory assessment and treatment or restrictive interventions significantly limit a person’s human rights and may cause harm and serious distress. They may also result in disruption of relationships, living arrangements, education and employment. For example, the loss of a job or housing while undergoing compulsory inpatient treatment. Consumers who have felt trauma or distress as a result of their experience of compulsory assessment or treatment or restrictive intervention may not access support services in future. • No therapeutic benefit to restrictive interventions The use of restrictive intervention offers no inherent therapeutic benefit to the person. This does not mean that restrictive interventions can’t be used when needed to prevent imminent and serious harmor (in the case of bodily restraint) to allow for treatment or medical treatment to be administered. Decision-makers must consider that the act of restraining a person or confining them to a space alone can be traumatic for them and that their use does not of itself offer any therapeutic benefit to the person. • Balancing of harm Compulsory assessment and treatment and restrictive interventions are not to be used unless