Making decisions about mental health treatment, care and support

Contributed by Dr Stephen Tang, Lecturer, ANU College of Law and current to March 2022.

The Mental Health Act 2015 affirms the right of everyone to be actively involved in their mental health treatment, care and support. People are to be encouraged to participate and express their views and preferences about their mental health treatment regardless of whether they are receiving that treatment voluntarily or involuntarily.

The Act contains a number of ways in which people can express their treatment preferences and other practical considerations ahead of time, so that the treating team can treat and care for the person in line with their wishes if they become unwell. These include the creation of an Advance Agreement (AA) or an Advance Consent Direction (ACD). Also, the Act allows the person to invite other people to be formally involved in their mental health treatment, care and support. This can be achieved through the appointment of a Nominated Person (NP).

As a last resort, the Act allows for decisions to be made about a person’s mental health treatment, care or support by the treating team or care team. Alternatively, someone else (such as a guardian) may consent to some decisions about the person’s treatment, care and support. Except in emergency situations, all such actions must be authorised by the ACAT.

Decision-Making Capacity

What is decision-making capacity?

One very important concept in the Act is that of decision-making capacity. This is the extent to which someone is able to make decisions in relation to their mental health treatment, care and support.

Section 7 of the Act says that someone has decision-making capacity in relation to a particular decision if they are able to do all of the seven following things, with as much or as little support as they need to do so:

1. Understand when a decision about their mental health treatment, care or support needs to be made;
2. Understand the facts that relate to that decision;
3. Understand the main choices available to the person in relation to the decision;
4. Weigh up the consequences of the main choices;
5. Understand how the consequences affect the person;
6. Make the decision, based on the steps above; and
7. Communicate the decision in whatever way they can (e.g., telling the treating team, or writing it down) (see also s 8(1)(c) and (d).

Section 8 of the Act sets out some principles which further explain the concept of decision-making capacity. Importantly, section 8 makes it very clear that everyone has decision-making capacity unless there is reliable evidence otherwise (s 8)1)(b)). This means that the treating team must have a good reason to believe that the person is unable to do one or more of the things listed above in relation to a particular decision. They can also only reach this conclusion after providing the person with as much support as they need to make the decision (which is known as ‘supported decision-making’).

If this is the case, the person may be described as not having decision-making capacity, or as having impaired decision-making capacity. Sometimes a person may be described as having ‘lost’ decision-making capacity. This is not a good description, as decision-making capacity is rarely ‘lost’ (if it can be legally ‘lost’ at all: see Nick O’Neill and Carmelle Peisah (eds), Capacity and the Law (3nd ed, 2021)), but is instead varies across time and depending on the decision.

After all, everyone’s decision-making capacity varies from time to time. This can be caused by the symptoms or experiences of a mental illness or disorder which is affecting a person’s thinking, reasoning or communication. It may also be caused by the effects of medication, another medical issue, or even just being tired, distracted or hungry. A person who moves between having and not having decision-making capacity must, if reasonably practicable, be therefore be given the opportunity to consider and make a decisions at a time when the person has decision-making capacity (s 8(1)(g) Mental Health Act).

Section 8 also says that decision-making capacity is relevant to each decision in relation to their treatment, care or support (s 8(1)(a)). Just because a person does not have decision-making capacity to make one kind of decision does not automatically mean that the person does not have the capacity to make another kind of decision. As mentioned before, people must be presumed that people have decision-making capacity for each decision. For example, because of the effects of a person’s mental illness, they may not have decision-making capacity to decide that they need to take medication, but may have the capacity to decide that they only want to take a particular medication, and only before they go to bed.

Section 8 also makes it clear that just because someone is ruled to have impaired decision-making capacity under another law does not automatically mean that the person does not have decision-making capacity under the Act. This is particularly relevant to guardianship legislation, where it is easier for a person to be assessed as generally not having decision-making capacity because of a mental illness or disorder (Guardianship and Management of Property Act 1991 s 5; see also Powers of Attorney Act 2006 s 9).

How is decision-making capacity assessed?

Not all decisions are equal in what is required of the person as a decision-maker. To take an example from everyday life, the decision to buy an ice cream requires less detailed consideration about the facts, choices, consequences and the communication of the decision than a decision about whether or not to buy a house. In the same way, a decision about whether or not to participate in today’s group therapy session may require a lower level of decision-making capacity than a decision about treatment that requires balancing the long-term benefits and risks of different kinds of medication. As such, the assessment of decision-making capacity must be proportional to the type and significance of the decision.

How decision-making capacity to be assessed, then, will vary from situation to situation. It is not, however, primarily a medical or psychiatric assessment. The assessment of decision-making capacity is not something that only a psychiatrist or psychologist can do. While various ways of formally testing decision-making capacity have been developed, there is no one test or assessment method that can be used across all circumstances. None are therefore recommended for use as the primary way to determine whether someone has capacity or not.

Given that the Act affirms the importance of supported decision-making, a better approach may be to assess the level of support that the person currently has, and may need, to make the decision. People rarely make important decisions on their own even when they are at their best. Talking with other people and getting their support to make a decision is a normal part of everyday decision-making. The treating team must ensure that this support and connection continues to be available when the person is unwell, particularly if being in hospital or another health care setting makes it more practically difficult for the person to be and feel connected to others they trust. By providing the needed support, the person is more able to participate actively and collaboratively in their treatment, care and support as intended by the Act.

Advance Agreements

An Advance Agreement (AA) is a written document which set outs in advance a person’s preferences for their mental health treatment, care or support, and any relevant information about practical support the person may need if they do not have decision-making capacity (s 26(1)). An AA is made when the person has decision-making capacity, and takes effect when the person does not have decision-making capacity in relation to their treatment, care or support. This is particularly relevant for when a person may need to be admitted to hospital involuntarily.

An AA can set out one or more of the following (s 26(2) Mental Health Act):

• The person’s preferences for their mental health treatment, care or support (but not consents or non-consents to treatment, care or support, which can only be included in an Advance Consent Direction);
• The person’s preferences for practical support while they are receiving treatment, care and support, such as arrangements for looking after their children, property or pets;
• Contact details for people that the person would like to be informed when the person is unwell and does not have decision-making capacity, such as carers, the person’s legal guardian, advocates or legal representatives, a Nominated Person, or people providing practical support or assistance to the person.

An AA is a collaborative document developed between the person and their treating team. The AA must be in writing and signed by the person, a representative of their treating team, and the Nominated Person, if the person has appointed one (s 26(3) Mental Health Act). The treating team representative will usually be a clinician from an ACT Health inpatient or community mental health service (e.g. the person’s clinical manager or psychiatrist) at the time that the AA was made. However, the treating team can also be the person’s GP, private psychiatrist or psychologist, or another mental health professional, if they are actively involved in the person’s current mental health treatment, care or support and are willing to sign the agreement (see section 24 for the definition of ‘treating team’).

The preferences expressed in a person’s Advance Agreement are intended to form the basis of the treating team’s approach in supporting the person’s treatment, support and recovery when the person has impaired decision-making capacity. Before giving any treatment, care or support to a person, the treating team must check to see if a person has an AA, and if so, give treatment, care or support to the person in accordance with the preferences expressed in the AA to the extent reasonably practicable (s 28 Mental Health Act).

The treating team should also take reasonable steps to ensure that the person’s practical needs are addressed, especially during an inpatient admission and also as part of recovery planning. However, the Act prohibits the person from being detained or restrained just to give effect to the AA.

Details about the practical steps involved in making, communicating and amending an AA are discussed at AAs and ACDs: Practical Considerations.

Advance Consent Directions

An Advance Consent Direction (ACD) is similar to an Advance Agreement but contains details about what treatments, procedures or medications the person consents to or does not consent to receiving, and who can and cannot be contacted in relation to the person’s treatment, care and support. Like an AA, an ACD is a collaborative document which is made when the person has decision-making capacity and takes effect when the person does not have decision-making capacity in relation to their treatment, care or support.

An ACD can set out one or more of the following (s 27(1) Mental Health Act):

• The kinds of treatment, care or support the person is willing to receive if the mental illness or mental disorder results in the person not having decision-making capacity;
• Particular medications or procedures the person consents to receive;
• Particular medications or procedures the person does not consent to receive;
• People who may be given information about the person's treatment, care or support; and
• People who must not be given information about the person's treatment, care or support.

A person can also consent in an ACD to receiving Electroconvulsive Therapy (ECT) (s 27(4) Mental Health Act). This would mean that an application to ACAT for an ECT Order (see Chapter 9 of the Act) would not be necessary if the person does not have decision-making capacity to consent to the ECT, but is not resisting it. A person can give consent for up to 9 sessions of ECT treatment in an ACD. If the person wishes to consent to further ECT treatment, a new ACD must be created.

An ACD is written by the person in close consultation with their treating team. The agreement and opinion of the treating team is essential, as the person is making important decisions about what must and must not happen to them if they require treatment, care and support in the future. These decisions must be safe and based on good clinical evidence. The ACD must therefore be signed by the person and a representative of their treating team in the presence of a witness who is not part of the treating team.

If the person was not receiving treatment, care or support from ACT Health at the time that the ACD was made, the treating team may be the person’s GP, private psychiatrist or psychologist, or another mental health professional (see ss 27(3) and 24 Mental Health Act). However, the representative of the treating team must be willing to endorse the person’s choices about future treatment, which may occur in a setting that the mental health professional is not involved in or with which they are not familiar. The member of the treating team should therefore have the professional experience and skills to be able to provide advice to the person in relation to their future decisions. An ACD which consents to ECT must be signed by the person and a member of the treating team in the presence of two witnesses (s 27(4) Mental Health Act).

If a person has made an ACD and later does not have decision-making capacity in relation to the treatment decisions being made, the treating team must provide treatment, care and support in accordance with the ACD (s 28(3) Mental Health Act).

This means that if the person consents in the ACD to a form of treatment, care or support, or a particular medication or procedure, the treating team may (but are not required to) provide it without seeking further consent, as long as the the person is not resisting. However, if the person is resisting the treatment, care or support to which they had previously consented in their ACD, the treating team can only give that treatment, care or support after applying to ACAT and obtaining an order that the treatment be given (s 28(4) Mental Health Act).

If the person does not consent in the ACD to a form of treatment, care or support, or a particular medication or procedure, the treating team must not provide it, unless the treating team believe that not providing that treatment would be unsafe or inappropriate. If this is the case, the treating team may override the ACD, but only if:

• The treating team applies to ACAT and obtain an order that the proposed treatment, care or support be given (s 28(5)(b)); or
• All of the following apply:
  ○ The person is willing to receive the treatment, care or support proposed by the treating team;
  ○ The person has a guardian, enduring power of attorney or a health attorney who has the authority to consent to the proposed treatment, care or support; and
  ○ The person’s guardian, enduring power of attorney, or health attorney give consent to the proposed treatment, care or support (s28(5)(a)).
  

AAs and ACDs: Practical Considerations

ACT Health, the ACT Mental Health Consumer Network (ACT MHCN) and other partners have developed a package, called My Rights, My Decisions , to make it easier to create an AA and/or ACD, as well as to appoint a Nominated Person. The forms are recognised by ACT Health and can be used by anyone, regardless of whether they are currently receiving treatment, care or support from an ACT Health mental health service. The ACT MHCN also offer peer-led workshops to help people to understand the forms and process and to begin to prepare the forms. If a person is currently receiving treatment, care or support from ACT Health, they can directly obtain a copy of this kit from a member of their treating team. If the person has not been given the opportunity to make an AA or ACD, they have the right to request that they meet with a treating team member to discuss and complete the forms together.

Remember that an AA and ACD can only be made when the person has the decision-making capacity to do so. Once the forms have been discussed and agreed to by the treating team, the treating team will keep a copy of the AA or ACD on the person’s ACT Health electronic clinical record, and distribute a copy to the relevant people (s 26(5) (for AAs) and s 27(6) (for ACDs)).

It is also very important that any AA or ACD is written in a way which is clear, easy to read, and directly to the point. An AA and ACD will be read by members of the treating team who may only have a very short period of time to decide what treatment, care or support should be provided, and will not have the time to go through a long or hard-to-read document. The person creating the AA or ACD has the responsibility to ensure that the information contained in the document is clear and realistic to maximise the chances that their wishes and preferences are given effect when needed. The My Rights, My Decisions kit also includes a wallet card and keyring which may help in letting clinicians know that an AA, ACD is in place.

Once made, AAs and ACDs do not expire unless they are revoked (s 29 Mental Health Act). The person therefore has the responsibility to make sure that the contents of the AA and ACD are accurate and reflect their current preferences, consents and wishes. AAs and ACDs should be reviewed regularly, in the same way that a person’s will or power of attorney should also be kept up to date. Like a will, the preferred way to update an AA and ACD is to make a new one and distribute it to the relevant people.

If a person has an AA or ACD and also has a guardian appointed, or has appointed someone with an enduring power of attorney, the guardian or attorney must consider contents of the the AA or ACD before giving consent on behalf of the person. However, if the ACD already consents to the proposed treatment, the guardian or attorney’s consent is not required (ss 20 and 31 Mental Health Act).

At the moment, AAs and ACDs made under the Act are only valid in the ACT. If the documents are given to a treating team in another state or territory, they may choose to follow it, but may not be required to do so. Similarly, interstate equivalents to an AA or ACD are not binding in the ACT. The treating team may be guided by such documents, but are not required to give treatment, care and support in accordance with them.

Nominated Persons

A Nominated Person is someone who is appointed by a person with a mental illness or mental disorder to be informed and consulted about the person’s treatment, care and support and to ensure that the person’s interests and rights are respected (s 20 Mental Health Act).

A Nominated Person does not have the power to make treatment decisions or give other consents on behalf of the person who appointed them. Instead, the Nominated Person is appointed to provide support to the person and to help them to express their own views and preferences about their treatment, care or support.

A Nominated Person is chosen by the person in writing, if they have the decision-making capacity to do so (s 19(1) Mental Health Act). The conditions for someone to be appointed are that they:

• Are an adult (i.e. aged 18 or above);
• Are able to carry out the duties of a Nominated Person;
• Are readily available (e.g. they can be contacted easily and at short notice); and
• Agree to be appointed as a Nominated Person (s 19(2)).

A Nominated Person can be appointed using the My Rights, My Decisions kit, which is available from the ACT MHCN website or from an ACT Health treating team. A copy of the form should be given to the treating team, who will ensure that the information is recorded on the person’s electronic clinical record.

The Nominated Person can be a close relative or close friend, a carer, a decision supporter, or any other person who is willing to be appointed. To ensure that they can exercise their role freely, Nominated Persons are not civilly liable (i.e. cannot be sued) for anything that they do which is reasonable and within the scope of their role (s 23 Mental Health Act). However, the Chief Psychiatrist can also end the appointment of a Nominated Person if they believe that the Nominated Person is unable to perform their duties, do not satisfy the appointment criteria, or if ending the appointment would be in the person’s best interests (s 22 Mental Health Act).

There are a range of situations under the Act where a Nominated Person must be consulted or be informed of a certain decision. These include:

• The ACAT, if they are deciding whether to make a Mental Health Order (a PTO or CCO) in relation to the person;
• A doctor at the Canberra Hospital or a Mental Health Officer, if they have authorised the initial detention or emergency detention of the person;
• The Chief Psychiatrist or their delegate:
  ○ before making a determination about the person’s treatment, care and support under a PTO;
  ○ if they believe that the person should no longer be subject to the PTO and/or RO;
• The Care Coordinator or their delegate:
  ○ before making a determination about the person’s treatment, care and support under a CCO;
  ○ if they believe that the person should no longer be subject to the CCO and/or RO.

An important safeguarding role of Nominated Persons is their ability to apply to ACAT directly for a review of a Mental Health Order, if the Nominated Person believes that the order is no longer required or could be reduced in its scope (s 79(2) Mental Health Act). A Nominated Person may also appear and give evidence at other hearings before the ACAT (s 190(1)(e) Mental Health Act), and has the right to appeal a decision made by ACAT to the ACT Supreme Court in relation to the person (s 267(1)(b) Mental Health Act).

If a person has the decision-making capacity to do so, they can end the appointment of a Nominated Person at any time by telling a member of the person’s treating team. If possible, the person who had been appointed should also be told that their appointment has ended, but this is not required under the Act. Similarly, a person who has been appointed as a Nominated Person can end their own appointment by telling a member of the treating team of the person who appointed them (s 22 Mental Health Act).

Substitute Decision-Making

If all attempts at supported decision-making are not successful or reasonably practicable in the circumstances, the Act and other legislation allows for decisions about treatment, care or support to be made by someone else on behalf of the person. This is known as substitute decision-making, and is intended to be only done as a last resort.

There are a number of ways in which substitute decision-making can apply to a person with a mental illness or mental disorder. These include the making of a Mental Health Order by ACAT, where consent to treatment is given by a guardian, person appointed under an enduring power of attorney, or a health attorney, under the appropriate legislation. These are discussed in the section on Alternatives to Mental Health Orders. The Act makes it clear that any substitute decision-making in relation to treatment, care or support must seek to bring about the best therapeutic outcomes for the person and promote the person's recovery (s 6(j)(v) Mental Health Act).