The Law Handbook 2024

836 Section 8: Disability, mental illness and the law options have been tried or considered and have been found to be unsuitable (s 128). Thinking about what is least restrictive requires consideration to the likely impact on the person, their views and preferences and any relevant past experience of trauma, as well as the person’s culture, beliefs, values and personal characteristics. This includes any views and preferences expressed in an advance statement of preferences or the views of a nominated support person (s 131). The MHWA sets out requirements for the monitoring, clinical review and examination of a person while restrictive interventions are being used on them. Seclusion is defined as confining a person, alone, to a room or other enclosed space from which it is not within their control to leave (s 3). Bodily restraint is defined in section 3 as physical restraint, or mechanical restraint, of a person. When bodily restraint is used on a person, they must be continuously observed by a registered nurse or registered medical practitioner for the entire time of the restraint (s 137). Chemical restraint is defined as the giving of a drug to a person for the primary purpose of controlling the person’s behaviour by restricting their freedom of movement but does not include the giving of a drug to a person for the purpose of mental health treatment or medical treatment (s 3). When chemical restraint is used on a person, they must be continuously observed by a registered nurse or registered medical practitioner for at least an hour after the chemical restraint is administered (s 137(2)(a-b)). When any restrictive intervention is used on a person, a registered nurse or registered medical practitioner must clinically review the person at least every 15 minutes, or more frequently if appropriate given the person’s condition (s 137(3)). When anyone other than an authorised psychiatrist authorises the use of restrictive interventions, the authorised psychiatrist must examine the person as often as is appropriate but not less frequently than every four hours, and determine if continued use of restrictive interventions is necessary (s 137(4)). When any restrictive intervention is used on a person, the authorised psychiatrist must conduct an examination of the person as often as is appropriate, which must be at least every four hours. If an authorised psychiatrist is not practically able to conduct an examination, a registered medical practitioner may do so when directed by the authorised psychiatrist (s 137(5)). There are new obligations to document the reasons for the use of restrictive interventions as well as all other less restrictive means tried and considered and why they were found unsuitable (s 133). The authorised psychiatrist has obligations to ensure: • Specified support persons and the non-legal mental health advocacy service are notified about the use, nature and reasons for the use of the restrictive intervention (s 135). • The restrictive intervention is reviewed after its use. The consumer needs to be offered an opportunity to participate in this review and to have a support person to participate as well (s 138). Both restraint and seclusion are highly intrusive practices that can cause trauma and distress and have been associated with serious harm and even death. Medical treatment without consent A patient (a compulsory, security or forensic patient) may be given medical treatment (as opposed to treatment for mental illness) once informed consent is obtained (s 91). However, where the person does not have the capacity to give informed consent, theMHWA provides for obtaining consent from the first available, willing and able person from the following list: • the patient’s appointed medical treatment decision-maker; • a person appointed by VCAT to make decisions about proposed medical treatment; • a person appointed under a guardianship order who has the power to make decisions about the proposed medical treatment; • subject to section 93, the authorised psychiatrist if satisfied that it would benefit the patient having regard to their views and preferences including any recovery outcomes, any beneficial alternative medical treatment that is reasonably available, any relevant values directive given by the patient, the views of the person’s nominated support person, guardian, carer (if relevant), parent, DFFH secretary (if relevant) and if the medical treatment is likely to remedy the condition or lessen the symptoms. The likely consequences for the patient if the medical treatment is not administered must also be considered, as does the second opinion