Patient's rights

Contributed by ShaylaStrapps and LukeCassidy and current to 27 July 2018

A person has a right to be provided an explanation of their rights under the Act in the following circumstances:

1. When admitted to hospital as a voluntary patient;
2. When admitted to hospital as an involuntary patient;
3. When a community treatment order is made; or
4. When a person is referred to an authorised hospital for examination.

The Act provides a number of express rights that apply to those receiving mental health treatment. Those rights are explained in further detail below.

Express Rights under the Act

Right to be Informed of Legal Status

An involuntary patient has the right to be told both in writing and verbally about their status. This must be done in a way that the patient can understand. An involuntary patient is also entitled to a copy of the form the psychiatrist created to bring about the involuntary status.

Right to Involvement in Treatment

Regardless of a person’s involuntary status and capacity to make decisions, every patient has the right to be fully informed about their treatment. Further, all patients must be treated in accordance with a Treatment, Support and Discharge Plan. The patient themselves must be involved in both the creating and updating this plan.

Right to Access Medical Records

All patients are entitled to either inspect or be given a copy of their medical records and other documents relating to the person. This right can be restricted in circumstances where revealing the records would pose a significant risk to the health and safety of either the person or another person. Restrictions also apply where the records would reveal personal information about another person.

Where access to records is refused, the patient can nominate a medical or legal practitioner to be provided access on their behalf. That practitioner cannot disclose any information to the patient.

Right to Personal Possessions

Patients have a right to access their personal possessions while in hospital. The hospital must ensure that a patient is provided a secure place to store possessions and is allowed to use them. This right can be restricted where the personal possession may pose a risk of harm to the patient or another person.

Right to Interview with Psychiatrist

A patient may request an interview with a psychiatrist at any time during admission. Once the request is made, the hospital must ensure that an interview is scheduled within a reasonable time. The request may be refused only when the patient is making repeated requests and the psychiatrist believes the patient is acting unreasonably in making the request.

Freedom of Communication

A patient has a right to freedom of communication. This includes speaking with other people in the hospital, speaking to people over the telephone and receiving visitors in hospital. A psychiatrist may make an order restricting this right if satisfied that it would be in the patient’s best interests to do so. A psychiatrist can only restrict visits from a patient’s lawyer or mental health advocate where there is a serious risk to the safety of the lawyer or advocate. A patient’s right to other forms of communication with a lawyer or mental health advocate cannot be restricted.

Right to a Second Opinion

Every patient has the right to a second opinion on their diagnosis and treatment. A request should be made to either the patient’s treating psychiatrist or to the Chief Psychiatrist. Once a request has been received, the second opinion should be organised as soon as practicable.

A psychiatrist is not required to follow any recommendations contained in a second opinion, however they must consider them in relation to the patient’s treatment. A request for a subsequent second opinion when one has already been organised may be refused if the request is considered to be unreasonable.

Treatment of Peoples of Aboriginal or Torres Strait Islander Descent

Consideration must always be given to a person’s cultural background. A person cannot be deemed to have a mental illness simply because they have certain spiritual or cultural beliefs and a person’s beliefs should be treated with dignity and respect. The Act specifically addresses these points in regards to patients of Aboriginal or Torres Strait Islander Descent (ATSI Patients). Principle 7 of the Charter of Mental Health Principles states that a mental health service must provide treatment and care to an ATSI patient that is consistent with their cultural and spiritual beliefs and practices. This is reflected throughout the Act.

Any assessment or examination performed under the Act for any purpose should involve an ATSI mental health worker where practicable. This may not always be possible where, for example, the need for an assessment is urgent and no suitable mental health worker is available.

The same applies to the provision of treatment. Treatment should involve ATSI mental health workers as well as significant members of the ATSI patient’s community. This specifically includes elders of people of significance within the patient’s culture who may serve a similar role as that of a close family member.

Review by the Mental Health Tribunal

Every involuntary patient has the right to a review of their involuntary status by the Mental Health Tribunal (MHT). The MHT is an independent body established under the Act to protect the rights of mental health patients. While the MHT mostly conducts reviews of involuntary orders under the Act, it does have the power to review other types of decisions. As previously mentioned, this includes approval of invasive procedures such as psychosurgery and ECT as well as transfer of a patient’s care to a different hospital or psychiatrist.

How to Request a Review

An involuntary patient can request a review as soon as the involuntary order comes in to effect. Once the request is received, the MHT will organise the review as soon as practicable. Regardless of the patient’s request, the MHT must organise a review of an involuntary order within 35 days of the order being made.

If the order is confirmed at the first review, the MHT must review the order every 3 months that the order is in effect. Following a review there is a 28 day period during which a new MHT review cannot be requested by the patient. If the patient is not within this 28 day period, or the MHT has waived that waiting period, then an early review can be requested at any time.

MHT Hearing

The MHT usually takes place at the hospital or outpatient clinic at which the patient receives treatment. If the MHT cannot travel to the location, for example when the patient is treated at a regional hospital, arrangements can be made for the review to take place via video-link.

The MHT is made up of 3 members; a legal member, psychiatric member and a community member. The 3 members will decide the outcome of the hearing. A member of the patient’s treating team will also be present to give evidence on the patient’s mental state and how they meet the criteria for involuntary treatment. The treating team will usually file a medical report with the MHT that summarises the patient’s condition.

The patient has the right to attend the hearing and be given access to the evidence given to the MHT. This access can be restricted if the MHT is satisfied that viewing the documents presents a risk to the patient’s health and safety, would reveal personal information about another person or the contents of the documents are confidential.

A patient has the right to representation at the MHT. This representative can be a lawyer, a mental health advocate or any other person who will act in the patient’s best interests with the MHT’s permission. If the patient is denied access to documents then the representative may view those documents on their behalf. The representative is not allowed to reveal the contents to the patient.

The MHT can allow other support people to attend the MHT along with the patient. During the hearing, the MHT will hear evidence from those present. The MHT is not bound by strict rules of evidence and can consider any evidence as it sees fit. The patient is given the opportunity to cross-examine any witnesses and comment on any evidence provided.

Following the Review

After hearing all the evidence the MHT will adjourn to consider their decision. The MHT can make one of the following orders:

1. Revoke the involuntary order;
2. Change an ITO to a CTO;
3. Amend the terms of a CTO; or
4. Maintain the current involuntary order.

Recommendations and Compliance Notices

The MHT does not have the power to make orders in relation to the specific treatment a patient receives. For example, the MHT cannot order that a patient be treated with a different medication. However, the MHT can make a recommendation that the patient’s treatment, support and discharge plan be reviewed and recommend any changes to the plan. The patient’s psychiatrist can still make the final decisions in relation to the treatment.

The MHT can also make orders in relation to complying with the Act. If a patient does not have a treatment, support and discharge plan the MHT can make an order requiring that one be created. The MHT can also issue a compliance notice to an authorised hospital requiring the hospital to comply with a requirement of the Act. This includes providing a document to a patient, including information on a patient’s medical record or complying with a request made under the Act.