The Law Handbook 2024

Chapter 8.4: Mental illness 829 the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use. This principle requires a balancing of the harm to be prevented against the harm to the person that is likely to result from their use. • Autonomy A person’s will and preferences must be given effect to the greatest extent possible in all decisions about assessment, treatment, recovery and support, including where those decisions relate to compulsory assessment and treatment. This includes not only what the person is saying at the time, but also information from an advance statement of preferences, input from nominated support persons, and recorded notes. • Proper consideration Decision-makers must give proper consideration to the decision-making principles when exercising a power or making a decision about a patient’s assessment, treatment and care. Proper consideration is the same test decision- makers will need to use when considering the mental health and wellbeing principles. Just like with those principles, what this means in practice will vary depending on the context. In circumstances where a decision is urgent, what is ‘proper consideration’ will be different to circumstances where there is more time for a decision, or where the impact of the decision may be particularly significant. The requirement to give proper consideration to the decision-making principles applies to any decision about the assessment, care or treatment of a patient. This includes, for example, decisions such as making an assessment order, making a TTO, applying to the Mental Health Tribunal for a TO to be made or authorising the use of restrictive interventions. Mental Health Tribunal The Mental Health Tribunal ( MHT ) is a statutory body that is independent from the mental health services. Its primary role is to decide whether a person requires compulsory mental health treatment. The MHT must interpret all statutory provisions consistently with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘ Human Rights Charter ’), so far as that is possible and consistent with its purpose. The MHT is considered to be a public authority under the Human Rights Charter (except when acting in an administrative capacity). As a public authority, the MHT must act compatibly with Charter rights, unless it could not have acted otherwise. What matters does the Mental Health Tribunal hear? The MHT conducts hearings in relation to: • whether a patient must have compulsory treatment subject to a TO; • revocation of TTOs or TOs • whether electroconvulsive therapy ( ECT ) can be given; • TOs for and transfer of security and forensic patients; • applications to review a refusal to grant leave of absence to a security patient; • the transfer of a person’s treatment interstate; • applications against the transfer of patients to another health service; • applications to perform neurosurgery for mental illness; and • applications for Intensive Monitored Supervision Orders. Compulsory mental health treatment and patients Compulsory orders The MHWA establishes a three-stage process for making compulsory orders: 1 an assessment order; then 2 a temporary treatment order ( TTO ); and then 3 a treatment order ( TO ). Step 1: Assessment order If a registered medical practitioner (a doctor) or an authorised mental health practitioner examine a person and are satisfied they meet the assessment criteria, they can make an assessment order under section 144 of the MHWA.