Mental health treatment

A person may be made subject to a treatment order under the MHWA if all of the ‘compulsory treatment criteria’ apply.

An authorised psychiatrist may make mental health treatment decisions for a patient subject to a compulsory treatment order in accordance with section 89 of the MHWA, both where:

• the patient does not have capacity to give informed consent to the treatment proposed or
• the patient has capacity to give informed consent but does not give informed consent to the proposed

The authorised psychiatrist must be satisfied that the proposed treatment is clinically appropriate and there is no less restrictive way for the patient to be treated than with that treatment.

Decisions about medical treatment other than for mental illness are made under Part 3.4 of the MHWA.

Under the MTPDA, a medical treatment decision maker:

• can make a decision about treatment for mental illness for a person who is not a ‘mental health patient’
• cannot make a decision about any type of medical treatment if the person has made a relevant instructional directive in an advance care directive (in which they have consented to or refused the proposed treatment)
• can only make a medical treatment decision if the person does not have decision-making capacity to make the decision
• must make a decision consistently with section 61 of the

According to section 61, the medical treatment decision maker must make the decision that they reasonably believe is the decision that the person would have made if the person had decision-making capacity. There are further considerations and obligations, including that the medical treatment decision maker must act with due diligence.

ECT can only be performed on a person (regardless of how old they are or whether or not they are a patient) in accordance with Part 3.5 of the MHWA. An adult who has personally given informed consent in writing to receiving ECT can receive ECT. In all other circumstances, ECT may only be performed if the Mental Health Tribunal has made an order authorising it.

A psychiatrist may apply to the Mental Health Tribunal for an order authorising ECT for a young person or adult who is not a patient in certain circumstances.

The Mental Health Tribunal will make an order authorising ECT if satisfied as to all of the following:

• the person does not have decision-making capacity to give informed consent
• there is no less restrictive way for the person to be treated and
• you have an instructional directive giving informed consent to the ECT, or your medical treatment decision maker has given informed consent in writing.

If a health practitioner proposes to administer medical treatment to a person who does not have decision-making capacity, an advance care director or a medical treatment decision maker, the health practitioner may administer that treatment without consent if the treatment is ‘routine treatment’ as defined in the MTPDA.

If the treatment is ‘significant treatment’ as defined in the MTPDA, then a health practitioner can ask the Public Advocate to make the medical treatment decision pursuant to section 63 of the MTPDA.

Decisions by the Public Advocate

The Public Advocate is required to make medical treatment decisions according to the same legislative criteria as any medical treatment decision maker.

However, the Public Advocate is a public authority within the meaning of the Charter of Human Rights and Responsibilities Act 2006 and therefore must also act compatibly with a person’s human rights.

Continuity of administration of prescription pharmaceuticals

From a clinical perspective, continuity of administration of prescription pharmaceuticals might be critical to the effective management of the person’s mental illness.

However, if a person is to be discharged from a compulsory treatment order, it should not be assumed that the Public Advocate will automatically consent, upon receipt of a section 63 request, to continuing the treatment.

The Public Advocate must make a decision in accordance with the MTPDA.

The decision may be to consent to the proposed treatment or to refuse it.

The decision-making process may take some time and requires the exercise of due diligence. It may be necessary to meet with the person to ascertain their preferences and values.

Health practitioners

It is the responsibility of health practitioners to recommend treatment for a person’s medical condition, including treatment for mental illness. This includes making an assessment of the person’s decision-making capacity in relation to any recommended medical treatment.

If the person is assessed to not have decision-making capacity, and does not have a relevant instructional directive, then the health practitioner must ask the medical treatment decision maker to make the medical treatment decision.

Medical treatment decision makers

The medical treatment decision maker, or the Public Advocate (where there is no other medical treatment decision maker) is responsible for making the medical treatment decision.

Medical treatment decision makers, including the Public Advocate, are not responsible for the management of a person’s mental illness or any other medical condition.

Find below a checklist for mental health practitioners to consider where a patient is to be discharged from a compulsory treatment order with expectation that they will continue to receive treatment for mental illness.

1. Does the person have decision-making capacity?

▢ If yes, after discharge they will make their own decisions to consent to or refuse proposed treatment.

▢ If no, proceed to next question.

2. Did the person make an instructional directive (in an advance care directive) when they had decision-making capacity?

▢ If yes, then the decision in the instructional directive is binding upon the health practitioner. Note, however, there are circumstances in which a health practitioner can refuse to comply with an instructional directive.

▢ If no, the medical treatment decision is made by:

• • the medical treatment decision maker
  • the Public Advocate where there is no medical treatment decision maker and the proposed treatment is 'significant treatment' as defined by the MTPDA.

Note there is no mechanism under the MTPDA to enforce a treatment decision against a person.

s. 3 - definitions, including 'medical treatment', 'mental health patient', 'treatment for mental illness', 'significant treatment'

s. 55 - medical treatment decision maker hierarchy

s. 60 - sets out how health practitioners giver effect to a person's relevant instructional directive in an advance care directive

s. 61 - sets out how medical treatment decision makers must make decisions

s. 63 - Public Advocate makes 'significant treatment' decisions where there is no relevant instructional directive or medical treatment decision maker.