Treatment that can be given on a (temporary) treatment order

Treatment that can be given on a (temporary) treatment order

Section 72 provides that a person subject to an order for compulsory treatment (such as a temporary treatment order or treatment order) ‘is to be given treatment for his or her mental illness’. Compulsory mental health treatment can be given on such an order, however the Act makes clear that voluntary treatment should be preferred (s. 11(1)(a)).

Is the treatment given voluntarily or compulsorily?

When making decisions about treatment (including when the psychiatrist proposes to change a person’s treatment) and before administering compulsory treatment, the treating psychiatrist should first check whether the person can receive that treatment or medication voluntarily (see ss. 70, 71).

Sections 68–71 of the Act (regarding capacity and consent) provide that a person may still be able to receive some of their treatment on a voluntary basis, even whilst being subject to an order for compulsory treatment, such as a temporary treatment order or treatment order. This is consistent with the objectives at s. 10(b) and (d) and the mental health principles at s. 11(1)(a), (c) and (e).

When can treatment be given compulsorily?

The starting point is that a person is presumed to have the capacity to give informed consent to treatment (s. 70). Merely because a person has a diagnosis of mental illness, or they make a decision their doctor thinks is unwise, or they are on a compulsory order, does not necessarily mean they do not have capacity to consent to treatment (see s. 68(2)).

A person can only be given treatment compulsorily (under s. 71) if they are subject to an order (such as a temporary treatment order or a treatment order) and provided the authorised psychiatrist is satisfied that two threshold questions are met:

  1. The authorised psychiatrist must first be satisfied that either:
  • the person has been assessed as not having the capacity to give informed consent to the treatment the psychiatrist is proposing; or
  • they have capacity but do not give their consent to that treatment (s. 71(1)

and

  1. The authorised psychiatrist must then be satisfied that the particular treatment they propose to give is the least restrictive way for the person to be treated (s. 71(3)), having regard to specific factors including (s. 71(4)):
  • the person’s views and preferences about treatment and any alternative treatments (including in their advance statement)
  • their recovery outcomes
  • the likely consequences for the person if they do not get the treatment proposed by their treating psychiatrist
  • the views of a nominated person and guardian (if the person has one)
  • any second psychiatric opinion they have received
  • the views of a carer or parent can be considered in certain circumstances.

The Act places obligations on mental health services to do everything possible to ensure the person has the best opportunity to make their own informed decision about treatment, supported decision-making options are pursued and compulsory treatment is a last resort. This includes:

  • not treating capacity as a blanket concept – a person’s capacity to give informed consent is specific to the particular decision that needs to be made and may change over time (s. 68(2)(a) and (b))
  • providing the person with information about the proposed treatment (including an explanation of the advantages and any side effects of that treatment and any beneficial alternatives) before an assessment is made to determine if a person does not have capacity to consent to it (s. 69(1) and (2))
  • providing information and explaining it in a way the person can best understand, ideally in writing and orally and with an interpreter if necessary (s. 8)
  • giving the person a reasonable time as well as support and advice to make a decision, including an opportunity to ask questions and consult a support person of their choice (s. 69(1) and (3)). This may include requesting a second opinion (under s. 79).

Practice tips

  • Compulsory treatment should only be given as a last resort. Check with your client, with the treating team and in the file what attempts have been made to provide information and advice and facilitate support for them to make their own decision.
  • It is not enough for the psychiatrist to give compulsory treatment merely because the person is not consenting to it. Compulsory treatment cannot be given unless there is evidence it is the least restrictive way for the person to be treated having regard to the persons own (subjective) views and preferences.
  • When prescribing treatment the psychiatrist must also consider whether that treatment aims to bring about the best possible therapeutic outcomes (mental health principle s. 11(1)(b)). However this is not sufficient in the case of compulsory treatment. There must also be evidence that it is the least restrictive way for the person to be treated having regard to the person’s views, preferences and recovery outcomes (subjective test) before it can be validly given against a person’s wishes under s. 71(3) and (4).
  • If the person agrees to the particular treatment the psychiatrist wants to give them, then consistent with the presumption of capacity in section 70, they can arguably get that particular treatment or medication voluntarily. In that case the treatment criteria may not all be met. The person can apply to the Mental Health Tribunal for revocation of the order if their psychiatrist does not revoke it.
  • If a person is concerned about treatment they don’t agree with, they can also make a complaint to the Mental Health Complaints Commissioner.
  • Consider referring your client to the Independent Mental Health Advocacy service (IMHA) for assistance with treatment decisions and preferences.

Note: electroconvulsive treatment (ECT) and neurosurgery are governed by specific and separate processes and criteria in the Act.

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