OPA has recommended legislative reform to clarify who may be subject to compulsory treatment for mental health and clearly limit the circumstances under which a person’s will and preferences could be overridden in its recent submission to the Independent Review of Compulsory Treatment and Decision-Making Laws.
An Independent Review Panel, convened in October 2022, is examining both the compulsory assessment criteria and the compulsory treatment criteria in the Mental Health and Wellbeing Act 2022. It will also consider how the Act can be more closely aligned with other decision-making laws to improve supported decision-making principles and practices.
OPA met with representatives of the Independent Review Panel and also made a written submission, drawing heavily on OPA’s experiences with the Medical Treatment Planning and Decisions Act and the 2019 Guardianship and Administration Act’s decision-making framework.
The submission contains OPA’s reflections on the strengths and gaps of these legislative frameworks with the goal of assisting the panel to consider how these may translate to the mental health space. It was set out in 3 parts:
- Existing opportunities for diversion from compulsory treatment that do not require legislative reform.
- Possibilities for legislative reform to reduce the use of compulsory treatment.
- Improving alignment of substitute decision-making legislation.
The submission made 6 recommendations including encouraging the Panel to consider legislative reforms which would clarify who could be subject to compulsory treatment for mental health – only people without relevant decision-making capacity, who otherwise met the criteria – and clearly limit the circumstances under which a person’s will and preferences could be overridden.
Other recommendations encouraged the adoption of decision-making criteria or principles for substitute decision makers, and new requirements for authorised psychiatrists to document their treatment decisions.