Mental health treatment

All the ‘treatment criteria’ need to apply in order for a person to be subject to a Temporary Treatment Order or Treatment Order.

An authorised psychiatrist may make a treatment decision subject to the requirements of the MHA. This includes both:

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

A person’s medical treatment decision maker cannot make a decision about treatment for the person’s mental illness at any time that the person being treated is a ‘mental health patient’ (that is, a patient under the MHA).

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 lacks decision-making capacity to make the decision
• must make a decision consistently with section 61 of the MTPDA.

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.

If a medical treatment decision maker consents to ECT, there is an additional requirement under the MTPDA that the psychiatrist make an application to the Mental Health Tribunal.

If there is no medical treatment decision maker and the treatment is ‘significant treatment’ as defined by the MTPDA, then the Public Advocate can make the medical treatment decision pursuant to s63 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 Office of 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 be able to make an automatic decision, upon receipt of a section 63 form to consent to the treatment.

The Public Advocate must make a decision consistently 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 lacks 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 legislative obligation upon any medical treatment decisions or the Public Advocate (where there is no medical treatment decision maker) is to make 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.

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.

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.