Section 5(d): no less restrictive means are reasonably available to receive immediate treatment

Section 5(d): no less restrictive means are reasonably available to receive immediate treatment

The Mental Health Tribunal can only be satisfied section 5(d) of the Mental Health Act 2014 (Vic) is met if it finds there is, ‘no other reasonable alternative to compulsory treatment available in order to prevent the occurrences of the serious deterioration and serious harm referred to in section 5(b)’ (see VLU [2014] VMHT 37 (16 September 2014)).

The tribunal in that case stressed that this requires ‘the level of restriction to be as little as possible and carefully tailored so that the restriction is no more than necessary to achieve the objective’.

One clear intention of the Act is that compulsory treatment is used only as a last resort. Its use and duration should be minimised, voluntary treatment preferred and a person supported to make or participate in decisions about their own treatment.

These are reflected in the objectives of the Act and the mental health principles, in particular at sections 10(b) and (d) and 11(1)(a), (c) and (e). See About the Mental Health Act 2014 and its principles.

The tribunal, as the primary decision-maker in relation to treatment orders, should enquire about any alternative measures that the person regards as less intrusive of their freedom of decision-making than a compulsory order.

What is ‘less restrictive means’?

Voluntary treatment is necessarily less restrictive than compulsory treatment, but determining precisely what constitutes ‘least restrictive means’ will depend upon the individual and their own views and preferences about treatment and their own unique recovery goals. It may include other support, supervision, monitoring, follow up with a private psychiatrist, doctor or family member.

The tribunal should ask the person:

  • Would you engage in treatment voluntarily and, if so, how would you do so?
  • What are the outcomes you hope to achieve, consistent with application of the mental health principles of recovery and self-determination (s. 11(1)(c) and (d))?

A number of factors will be relevant to consider.

In the case of FFY [2015] VMHT 33 (5 February 2015), the person had consistently held a strong preference for oral medication rather than the depot (injectable) medication preferred by their treating psychiatrist.

The tribunal found that, given FFY’s strong views about treatment and good engagement with services, consistent with section 11(d), he could get the immediate treatment he required as a voluntary patient and so revoked the order.

Where temporary supervision of medication through the mobile support team, or other mechanism, is available upon discharge from hospital, then this can reassure the tribunal that treatment can be obtained voluntarily, despite past non-compliance. See XFH [2015] VMHT 25 (5 February 2015).

Where a person has demonstrated good engagement with services and compliance with treatment then the tribunal is more likely to give them the opportunity to manage his mental health voluntarily. See LEH [2015] VMHT 35 (2 March 2015).

When a person has a strong preference to be treated by someone other than their treating team (such as a doctor or a private psychiatrist) and their relationship with the current treating team is counter-therapeutic, this criterion will not be met. See BYW [2015] VMHT 1 (9 January 2015).

This is also consistent with the principles of best therapeutic outcomes, recovery and full participation in community life (see s. 11(b)).

Capacity to consent to treatment and ‘insight’ are not necessary

If a person agrees to or doesn’t resist treatment (even if reluctantly or for purely pragmatic reasons), and even if they lack capacity or insight to make an informed decision, legal compulsion may not be required to ensure treatment.

Arguably, the person’s acquiescence to or compliance with treatment need only be as reliable or durable as is necessary for compulsory treatment to be received in the short-term.

In the case of FFY [2015] VMHT 33 (5 February 2015) the tribunal found that, despite his ‘very limited understanding of his mental illness, symptoms and the function of medication in treating his condition’ and a ‘reported history of non-adherence to treatment’, he could get treatment voluntarily given his high level of engagement with community supports and nearly four years without hospitalisation.

Nonetheless, presenting evidence of an informed understanding of illness and the need for treatment can be very persuasive when you are arguing that a compulsory order is not required because it provides greater reassurance that the person will voluntarily accept the treatment.

Voluntary treatment in these circumstances clearly furthers the mental health principles in promoting the person’s dignity and autonomy (see ss. 11(1)(a), (c) and (e)).

The case of NNV [2014] VMHT 27 (16 September 2014) also highlights the importance of taking into account the person’s current circumstances and even recent improvements in their mental health in making an assessment of their level of understanding of their illness and acceptance of treatment.

‘Reasonably’ available

The means and services for providing treatment do not necessarily have to be proven to be immediately available. The qualification of ‘reasonable’ availability suggests that, so long as the means or services are theoretically available, then this should be sufficient evidence that the criterion is not met.

Whilst some tribunals have taken a stricter view of the availability of treatment under this criterion, others have been prepared to accept the theoretical availability of temporary intensive support such as a mobile support team upon a person’s discharge from hospital. (See XFH [2015] VMHT 25 (5 February 2015) .

Past history of a period of successful voluntary treatment can also be persuasive.

Past non-compliance does not necessarily mean less restrictive (or voluntary) treatment is not reasonably available. It should be viewed in light of the person’s current circumstances and the dignity of risk (s. 11(1)(d)).

Allegations of non-compliance must be corroborated by evidence. The tribunal in HJA [2014] VMHT 59 (27 October 2014) was not prepared to accept uncorroborated assertions from the service about a history of non-compliance.

Discussion points for engaging your client

  • What is their understanding of their diagnosis and the effect of treatment?
  • Do they agree with or accept treatment and why? Have they had voluntary treatment in the past?
  • What are their preferences and wishes regarding treatment, including what is important to them, to help identify any ‘less restrictive means’ or types of treatment?
  • Do they have other family, support people or health professionals who could support them in accessing voluntary treatment or implementing other less restrictive alternatives?
  • What do they say about any allegations of non-compliance? How recently was it? Were there reasons for non-compliance (such as debilitating side effects)? Can the present situation be distinguished?
  • Have they been engaging with treatment and a treating team recently?
  • How would a person remain well or avoid relapse or hospitalisation or avoid incidents of harm?

Look for and test the evidence

  • What does the file say about the person’s current acceptance of and compliance and engagement with treatment and their treating team?
  • What is the evidence of past non-compliance? Who made the allegation? How recent was it?
  • Is there evidence that the person’s views and preferences for treatment have been considered by the treating team? What evidence is there that alternative treatments would not prevent the serious consequences established at section 5(b)?
  • Does the clinical file support what your client is saying?

Summary of cases relevant to section 5(d)

In the case of FFY [2015] VMHT 33 (5 February 2015), the person had consistently held a strong preference for oral medication rather than the depot (injectable) medication preferred by their treating psychiatrist.

While the tribunal accepted that ‘any decision to change to oral medication would involve a degree of risk’, it found that, given FFY’s strong views about treatment and good engagement with services, consistent with section 11(d), he could get the immediate treatment he required as a voluntary patient, and so it revoked the order.

In the case of XFH [2015] VMHT 25 (5 February 2015), despite concerns about past compliance with treatment, the tribunal accepted that XFH could get treatment as a voluntary patient, including with temporary supervision of medication by the Mobile Support Team once discharged from hospital (to ensure compliance). It found there was a least restrictive option that was reasonably available and revoked the order. The tribunal also noted the importance of the section 11(d) principle in coming to its decision.

In the case of HJA [2014] VMHT 59 (27 October 2014) the tribunal accepted that HJA had complied with treatment and would continue do so and therefore revoked his treatment order. Notably, the tribunal was unwilling to accept uncorroborated assertions from the service that HJA had a history of ceasing to take prescribed medication.

In LEH [2015] VMHT 35 (2 March 2015) although the tribunal considered that revoking the treatment order involved a risk of serious deterioration in his mental health and serious harm to himself and another, that ‘level of risk was being well managed by LEH and the treating team’.

This was ‘such a degree of risk as contemplated in section 11(d)’ and that, despite past non-compliance, given his recent compliance with treatment he should have the opportunity to manage his illness as a voluntary patient.

The case of BYW [2015] VMHT 1 (9 January 2015) illustrates that when a person has a strong preference to be treated by someone other than their treating team (such as a doctor or a private psychiatrist) and their relationship with the current treating team is counter-therapeutic, this criterion will not be met.

This is also consistent with the principles of best therapeutic outcomes, recovery and full participation in community life (see s. 11(b)).

In the case of NNV [2014] VMHT 27 (16 September 2014) NNV agreed to stay voluntarily in hospital for treatment and effectively had good insight.

The tribunal highlighted the significant improvement that NNV had made in the days before the hearing and that, despite her being ‘at greater risk’ without treatment, there was insufficient evidence to conclude there was no less restrictive means reasonably available to enable NNV to receive the immediate treatment voluntarily.

More information

Read more about the other treatment criteria: