Chapter 17 - Capacity and the right to refuse psychiatric treatment

Contributed by Christopher Ryan and current to February 2020.

17.1 Introduction

As was noted in Chapter 12, subject to some exceptions, adults cannot be given medical treatment without their consent. This chapter examines one of those exceptions – cases in which adults have a mental illness and psychiatric treatment is contemplated. In Australia, the unconsented treatment of mental illness is regulated by State and Territory mental health legislation, which varies in form and content in each jurisdiction. In general though, all the mental health Acts provide that, in certain circumstances, people with a mental illness may be given psychiatric treatment without consent and may also be involuntarily detained in prescribed places for that purpose.

In the early to mid 2010s there was extensive public discussion about whether, and if so, how, mental health law should take account of the presence or absence of decision-making capacity that a prospective patient may have to decide whether they wish to have treatment, and whether people with mental illness who retain decision-making capacity should be able to refuse treatment in the same way as patients can under general medical law. That discussion, and the influence of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), led to significant changes in the structure and content of mental health laws in all Australian jurisdictions except the Northern Territory. In this chapter we review how each Australian jurisdiction responded to the challenge of Article 12 of the CRPD in particular, that appears to require the abolition of laws that allow psychiatric treatment to be given without consent if a person with capacity has refused that treatment. We then review the recent reforms with respect to other requirements of the CRPD – including that all persons are entitled to a presumption of capacity, that people be supported to make their own decisions to the greatest extent possible and that, should a substituted-decision about treatment be required where a person is unable to decide for themselves, that such decisions respect the ‘rights, will and preferences of the person’ as far as possible.

17.2 The recent history of legislative reform in mental health

Up until 2013 the presence or absence of decision-making capacity played no role as a barrier to forced treatment in legal algorithms that permitted involuntary psychiatric treatment and detention.(1) Instead every State and Territory had legislation that permitted a person to be detained and treated without consent if three criteria were met. These were that:

1. the person suffered a mental illness or disorder.
2. the person or other people (or in Western Australia property) needed protection from some form of serious harm and that treatment would likely afford this protection.
3. the provision of involuntary psychiatric treatment (and if necessary detention) was the least restrictive method of providing this protection.

Each jurisdiction had its own way of formulating these criteria. Mental illness was variously defined. The harms specified were of varying degrees of seriousness and immediacy. The least restrictive criterion was variously worded.(2) All jurisdictions allowed people to be treated involuntarily in the community. All jurisdictions allowed unconsented psychiatric treatment even in defiance of patient’s competent objection.

As noted previously in Chapter 1.2, in July 2008, the Australian government ratified the CRPD. It defines persons with disabilities in such a way as to include people with, at least, long-term mental illness.(3) Article 12 specifies that such persons are entitled to recognition of having legal capacity on an equal basis with others and Art 4 calls for the modification and abolition of existing laws and practices that constitute discrimination against persons with disabilities. While the CRPD has no direct effect in Australian law, ratification obliges Australia to adopt strategies to meet its general obligations under the Convention. Australian courts have determined that existing local laws will be interpreted in a manner that is consistent with treaty obligations where there is any ambiguity.(4) Since traditional mental health legislation allowed treatment to be given for psychiatric illness even where a competent person objected to it, clearly the legal capacity of people with mental illness was not being recognised on an equal basis with others. As each jurisdiction began to review its mental health legislation after Australia’s ratification of the CRPD, each parliament introduced reforms, at least partly aimed at achieving consistency with Australia’s new international obligations. As a result, Australia’s current mental health Acts divide into three types with respect to their incorporation of the presence or absence of decision-making capacity into provisions dealing with involuntary treatment.

17.3. The role of decision making capacity in Australia’s mental health acts

17.3.1 Jurisdictions yet to reform their mental health legislation – Northern Territory

At the time of writing, every jurisdiction, other than the Northern Territory, had reviewed and made changes to its mental health legislation in response to the requirements of the CRPD. The Mental Health and Related Services Act (NT) retains traditional involuntary treatment criteria, facilitating psychiatric treatment despite a patient’s competent refusal.(5)

17.3.2 Jurisdictions prohibiting involuntary psychiatric treatment to mentally ill people who competently refuse it – Queensland, South Australia, Tasmania and Western Australia

At a minimum, the CRPD requires legislative reforms that prohibit the compulsory psychiatric treatment of a person with mental illness who retains decision-making capacity in relation to a decision about their own treatment.(6) The reforms introduced to Queensland, South Australian, Tasmanian and Western Australian Mental Health Acts put in place exactly those prohibitions.

Each of the mental health Acts of these jurisdictions has a fourth criterion specifying that a person could not be involuntarily treated unless they lack decision-making capacity, which was added to the three traditional involuntary treatment criteria noted above.(7) In all four new or reformed Acts, the test for determining the presence or absence of decision-making capacity is contained within the Act and are in largely line with the common law test.(8)

17.3.3 Jurisdictions demanding consideration of decision-making capacity but not prohibiting involuntary psychiatric treatment to mental ill people who competently refuse it – the Australian Capital Territory, New South Wales, and Victoria

The remaining jurisdictions have taken a variety of middle roads to reform. Clearly these jurisdictions still fall short of the standard required by the CRPD as they still permit psychiatric treatment to be given to a mentally ill person despite a competent refusal of that treatment. However, each Act contains a range of provisions – often expressed as objects or principles – designed apparently to ensure that in most circumstances a mentally ill person’s competent refusal treatment would be respected.

New South Wales took the most minimalistic road to reform, simply adding two additional requirements to the Act’s principles of care and treatment. These were that “every effort that is reasonably practicable should be made to …”

1. monitor patient’s capacity to consent
2. obtain patient’s consent when developing their treatment plans and recovery plans for their care.(9)

The Act is clear that “[i]t is the intention of Parliament that the … principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder” and the assertion that “every effort that is reasonably practicable” be made clearly places clinicians under strong onus to comply with these demands. Arguably, the impact that these changes should be having upon day-to-day clinical practice should be profound.(10) It should be influencing the interpretation of the s 12 least of the restrictive alternative criterion for involuntary treatment with the effect that mentally ill people who competently refuse treatment would only be involuntarily treated in extraordinary circumstances.(11)

The Victorian reforms were much more extensive. Though it is still possible for an authorised psychiatrist to treat and detain a person who competently refuses psychiatric treatment, this can only occur if “there is no less restrictive way for the patient to be treated”.(12) In assessing whether or not involuntary treatment is the least restrictive avenue for treatment, they must have regard (“to the extent that is reasonable in the circumstances”) to a variety of factors including “the patient's views and preferences about treatment of their mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve”.(13) This requirement must been seen in the context of a range of new mental health principles introduced into the Act that include: the provision of assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred;(14) the involvement by patients in all decisions about their assessment, treatment and recovery;(15) a directive that patients should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk;(16) and a directive patients “should have their rights, dignity and autonomy respected and promoted”.(17)

Taken together, these rather complicated provisions should, arguably, be having an impact similar to the impact promoted by the New South Wales reforms. So that again, mentally ill people who competently refuse treatment would only be involuntarily treated in extraordinary circumstances.(18)

The reforms embodied in the Australian Capital Territory legislation were the most extensive of all. Like the New South Wales and Victorian Acts, the Mental Health Act 2015 (ACT) continues to permit involuntary treatment of a patient who ‘does have decision-making capacity… but refuses to consent’.(19) However, an order for involuntary treatment made in that circumstance must take into account an elaborate set of ‘rights’ enumerated in the principles applying to the Act.(20) These are more detailed than those contained in the Victorian Act and are subject to additional safeguards. For example, patients are explicitly accorded ‘the right to consent to, refuse or stop treatment, care or support'(21) and to ‘determine [their] own recovery’.(22) In addition, if a psychiatric treatment order is made in circumstances where the person had decision-making capacity but refuses to consent, the ACT Civil and Administrative Tribunal (ACAT) must be satisfied that the potential for harm or deterioration in the person’s condition must be ‘of such a serious nature that it outweighs the person’s right to refuse to consent’.(23)

17.3.4 Translating reforms into protection of patient rights

The extent to which any of the approaches taken in these reforms, be they the black-and-white prohibitions on involuntary treatment to people competently refusing that treatment of Queensland, South Australia, Tasmania or Western Australia, or the varyingly detailed restraints placed on over-riding a competent objection to treatment adopted by the Australian Capital Territory, NSW and Victoria, will actually protect patient’s rights, remains to be seen. Analyses of the impact of the Victorian reforms on Mental Health Tribunal decisions and of the reforms nationwide on CTO usage strongly suggest that legislative reforms do not automatically lead to changes in culture or practice at the coalface.(24)

17.4 Other reforms to Australia’s mental health acts

As we noted in the introduction to this chapter we have argued that compliance with the CRPD demands a range of reforms beyond prohibiting involuntary psychiatric treatment to patients who competently refuse it. Specifically it requires that decision-making capacity be presumed, that people be supported to make their own decisions, and, when substituted treatment decisions are made, that those decisions respect the ‘rights, will and preferences of the person’ as far as possible.(25) In this final section we briefly survey Australian mental health legislation for its adherence to these requirements.

All of the new and reformed mental health Acts, except the Mental Health Act 2007 (NSW), contain an explicit provision that decision-making capacity should be presumed.(26) With the omission of such a provision in New South Wales it is likely that the common law presumption of capacity would apply.(27)

The degree to which the new and reformed mental health Acts provide that mentally ill people be supported to make their own decisions varies considerably. All of the new or reformed acts include at least some basic provisions for support for decision-making, many of which were carried over from the old legislation. These include very elementary measures such as requiring interpreters to be made available for non-English speakers,(28) that efforts should be made to communicate in a way that the patient is likely to understand(29) and allowing sufficient time for decisions.(30) All new legislation also includes provisions allowing patients to nominate a formal supporter who is entitled to receive information, to be consulted and informed about treatment decisions, to be present when patients are required to make decisions themselves, to have access to documents, and so on.(31)

The new and reformed Acts have taken a variety of approaches to the requirement that when substituted treatment decisions are made that they respect the ‘rights, will and preferences of the person’ as far as possible.

Some of the acts make provision for patients to nominate their own proxy decision-maker, who is usually a guardian or attorney or substitute decision-maker appointed under separate guardianship or similar statutes, and who is formally authorised to give substituted consent for treatment should the person be unable to. Substituted consent provided by a patient-nominated proxy can then be used instead of an involuntary order,(32) although no Act permits those proxies to refuse treatment on behalf of a patient in such a way that would prevent treatment being given under an involuntary order.

All of the new and reformed Acts, except South Australia’s, contain some provisions apparently aimed at making treatment decisions made by proxies be guided by the patient’s will and preferences. Most rely on obligations, often found in the Act’s objects or principles, that require the patient’s wishes to be ‘considered’, ‘respected’ or taken into account by substituted decision-makers, though usually with a proviso that this need only be done where ‘practicable’ or ‘reasonable” to do so.(33)

17.5 Conclusion

At the time of writing, every Australian jurisdiction, except the Northern Territory has made significant reforms to its mental health legislation influenced by the United Nations CRPD. All have made reforms to offer at least some protection of the right of a competent person to refuse psychiatric treatment, though in the Australian Capital Territory, New South Wales and Victoria, this right is not protected to the same degree as it is with respect to general medical treatment. All, except New South Wales have introduced provisions requiring that decision-making capacity be presumed. However decision-making capacity in adults is presumed under common law unless it is intentionally removed by legislation. All Acts contain some provisions requiring that people be supported to make their own decisions, those these vary significantly, and all, except South Australia’s, guide substituted decision-makers to consider the person’s will and preferences, but generally this guidance highly qualified.

Notes

1 : Christopher James Ryan, 'Capacity as a Determinant of Non-Consensual Treatment of the Mentally Ill in Australia' (2011) 18 Psychiatry, Psychology and Law 248.

2 : See table in: Sascha Callaghan and Christopher James Ryan, 'Rising to the Human Rights Challenge in Compulsory Treatment – New Approaches to Mental Health Law in Australia' (2012) 46 Australian and New Zealand Journal of Psychiatry 611.

3 : Convention on the Rights of Persons with Disabilities (CRPD), opened for signature on 30 March 2017, 3 UNTS 2515 (entered into force 3 May 2008) art 1.

4 : Minister of State for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

5 : Mental Health and Related Services Act (NT) s 14. As was the case in a number of jurisdictions prior to the recent round of reforms, the Northern Territory legislation does make reference to capacity in its involuntary treatment criteria by including at s 14(b)(iii) that “as a result of the mental illness … the person is not capable of giving informed consent to the treatment or has unreasonably refused to consent to the treatment” [emphasis added]. Clearly the presence of the italicised component of this provision means that the Northern Territory legislation continues to treat the legal capacity of those a mental illness differently from its treatment of the legal capacity without mental disability.

6 : Sascha Callaghan and Christopher J. Ryan, 'An Evolving Revolution: Evaluating Australia's Compliance with the Convention on the Rights of Persons with Disabilities in Mental Health Law' (2016) 39 University of New South Wales Law Journal 596.

7 : Mental Health Act 2016 (Qld) s 12; Mental Health Act 2009 (SA) ss 10, 16, 21, 25, 29 as amended by Mental Health (Review) Amendment Act 2016 (SA) ss 12, 16, 17, 21, 25; Mental Health Act 2013 (Tas) s 40; Mental Health Act 2014 (WA) s 25.

8 : Mental Health Act 2016 (Qld) s 14; Mental Health Act 2009 (SA) s 5A, as amended by Mental Health (Review) Amendment Act 2016 (SA) s 8; Mental Health Act 2013 (Tas) s 7; Mental Health Act 2014 (WA) s 18.

9 : Mental Health Act 2007 (NSW) s 68(h1).

10 : Christopher James Ryan and Sascha Callaghan, 'The Impact on Clinical Practice of the 2015 Reforms to the NSW Mental Health Act' (2017) 25 Australasian Psychiatry 43.

11 : Mental Health Act 2007 (NSW) s 12.

12 : Mental Health Act 2014 (Vic) s 71.

13 : Mental Health Act 2014 (Vic) s 71(4)(a).

14 : Mental Health Act 2014 (Vic) subs 11(1)(a).

15 : Mental Health Act 2014 (Vic) subs 11(1)(c).

16 : Mental Health Act 2014 (Vic) subs 11(1)(d).

17 : Mental Health Act 2014 (Vic) subs 11(1)(e).

18 : Christopher Maylea and Christopher James Ryan, 'Decision-Making Capacity and the Victorian Mental Health Tribunal' (2017) 24 International Journal of Mental Health and Capacity Law 87

19 : Mental Health Act 2015 (ACT) ss 58, 66.

20 : Mental Health Act 2015 (ACT) s 6.

21 : Mental Health Act 2015 (ACT) s 6(b)(i).

22 : Mental Health Act 2015 (ACT) s 6(c).

23 : Mental Health Act 2015 (ACT) s 58(2)(d) (emphasis added).

24 : Christopher Maylea and Christopher James Ryan, 'Decision-Making Capacity and the Victorian Mental Health Tribunal' (2017) 24 International Journal of Mental Health and Capacity Law 87 ; Christopher James Ryan, ‘The effect of laws that increased the salience of decision-making capacity on the usage of CTOs’ (forthcoming).

25 : Sascha Callaghan and Christopher James Ryan, 'An evolving revolution: evaluating Australian compliance with the Convention on the Rights of Persons with Disabilities in mental health law’ (2016) 39 University of New South Wales Law Journal 596

26 : Mental Health Act 2015 (ACT) s 8(1)(b); Mental Health Act 2016 (Qld) s 5(b); Mental Health Act 2009 (SA) s 5A, as amended by Mental Health (Review) Amendment Act 2016 (SA) s 8; Mental Health Act 2013 (Tas) s 7; Mental Health Act 2014 (Vic) s 70; Mental Health Act 2014 (WA) s 13.

27 : Hunter and New England Area Health Service v A [2009] NSWSC 761.

28 : Mental Health Act 2007 (NSW) s 70; Mental Health Act 2013 (Tas) s 135; Mental Health Act 2009 (SA) s 45; Mental Health Act 2014 (WA) s 9(2).

29 : Mental Health Act 2015 (ACT) ss 6(h), 15-17; Mental Health Act 2007 (NSW) s 68; Mental Health Act 2016 (Qld) s 5, sch 1; Mental Health Act 2013 (Tas) ss 8(4), 15; Mental Health Act 2014 (Vic) s 8; Mental Health Act 2014 (WA) s 9(2).

30 : Mental Health Act 2014 (Vic) s 11(1)(c), Mental Health Act 2014 (WA) s 20.

31 : Mental Health Act 2015 (ACT) ss 15(4), 19-23; Mental Health Act 2007 (NSW)ss 71-72; Mental Health Act 2016 (Qld)s 25(2); Mental Health Act 2009 (SA) s 47; Mental Health Act 2013 (Tas) s 3 (definition of ‘representative’); Mental Health Act 2014 (Vic) s 23; Mental Health Act 2014 (WA) s 27.

32 : Mental Health Act 2016 (Qld)ss 13, 48; Mental Health Act 2009 (SA) s 3 (definition of substitute decision-maker), as amended by Mental Health (Review) Amendment Act 2016 (SA) s 5; Mental Health Act 2014 (Vic) s 75; Mental Health Act 2014 (WA) s 13(2), 17. In the ACT, any treatment not consented to by the patient is provided under an order made by the ACAT. However, guardians, attorneys and health attorneys appointed by the patient under separate legislation have a role including mandatory consultation on matters involving detention and treatment: Mental Health Act 2015 (ACT) ss 54, 62(5); and, may give substituted consent for some treatments: ss 28(5), 30–1.

33 : Mental Health Act 2015 (ACT) ss 6(d), 56(1), 62(5)–(6); Mental Health Act 2007 (NSW)s 68(h)–(h1), (j); Mental Health Act 2016 (Qld)ss 5(b), 53; Mental Health Act 2013 (Tas) s 15, sch 1 cl 1(m); Mental Health Act 2014 (Vic) ss 71(4), 76(2); Mental Health Act 2014 (WA) s 7(2).

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