Advance Statements, nominated persons, second opinions

Advance statements

Making an advance statement is one way for a person to have some control over their future treatment. An advance statement sets out what a person’s preferences are for treatment if they become unwell and require compulsory treatment. Lawyers can assist by explaining how clients can make advance statements (including providing resources such as IMHA’s template and guide to advance statements), how statements can be used and their legal effect. They can also support people to use their statements when negotiating with mental health services, and when appearing before the Mental Health Tribunal.

An advance statement can be made at any time (s. 20). It must be:

• a written statement
• signed and dated by the person making it, and
• witnessed by an ‘authorised witness’.

The authorised witness must include a statement that the person making it understands the statement and the consequences of making it. The authorised witness can be a:

• registered medical practitioner
• mental health practitioner, or
• a person authorised to witness statutory declarations.

Contents of an advance statement

The Act establishes that an advance statement sets out a person’s preferences in relation to treatment (s. 19). Advance statements are a key tool for putting into practice the supported decision-making focus of the Act. To achieve this object, statements can include client preferences, needs, experiences, goals and strengths.

For resources and templates for making an advance statement see IMHA’s webpage Making an Advance Statement.

When advance statements must be taken into account

Under the Act, decision-makers like an authorised psychiatrist and the Mental Health Tribunal must take into account a person’s advance statement at various times. These situations include:

• making a temporary treatment order (s. 46(2)(ii))
• determining whether a temporary treatment order should be in the community or as an inpatient (s. 48(2)(b))
• determining a treatment order application (s. 55(2)(b)
• determine less restrictive treatment options (s. 71(3)), and
• providing second opinions (s. 82(d)).

Arguably advance statements should be considered even where there is no explicit obligation under the Act. This is consistent with MH principle at 11(1)(c) which states that ‘persons receiving mental health services should be involved in all decisions about their assessment, treatment and recovery and be supported to make, or participate in, those decisions, and their views and preferences should be respected’.

When can a psychiatrist ‘override’ an advance statement

The Act sets out a process that should be followed if a psychiatrist proposes to make a treatment decision that is in conflict with an advance statement. The psychiatrist must consider the advance statement and may only ‘override’ the person’s wishes where the preferred treatment is not clinically appropriate or not ordinarily provided by the mental health service (s. 73).

If the psychiatrist overrides an advance statement, the person can ask for written reasons, and must be given these within 10 days of request.

Advance statements and Mental Health Tribunal hearings

The tribunal must have regard to a person’s advance statement if they have one. Advance statements can be used in tribunal hearings to demonstrate a persons engagement with their treatment and recovery.

In TRN [2015] VMHT 203 (13 November 2015) the tribunal had reference to TRN’s advance statement and accepted it as evidence that she could be treated less restrictively as a voluntary patient.

Revoking an advance statement

A person can revoke their advance statement in writing at any time (s. 21). They must sign and date it and have it witnessed by an authorised witness. The witness must include a written statement that the person understands the consequences of revoking the statement.

A person can also make a new advance statement. This new advance statement has the effect of revoking the previous statement. If a person changes their mind, they cannot amend an advance statement, only make a new one (s. 22).

Nominated person

A person receiving compulsory treatment under the Act has the right to name a nominated person. The nomination must be in writing and signed by the nominated person who agrees to act in the role.

A nominated person is somebody who a person nominates to receive information and support them while they are receiving treatment as a compulsory patient under the Mental Health Act (ss. 23–27).

Under s. 23, the role the nominated person is:

1. to provide the patient with support and to help represent the interests of the patient and
2. to receive information about the patient in accordance with this Act and
3. to be one of the persons who must be consulted in accordance with this Act about the patient's treatment and
4. to assist the patient to exercise any right that the patient has under this Act.

The nominated person cannot make decision on behalf of the person. The purpose of the role is to advocate for a patient’s wishes, and to establish their preferences, needs, experiences, goals and strengths. This is not a ‘best interests’ model.

A lawyer can explain the role of the nominated person, how to nominate and revoke a nomination, and explain when the nominated person must be consulted.

The lawyer can recommend the patient consider and discuss issues such as confidentiality and collaborative decision-making with the person they intend to nominate.

For resources and templates, see IMHA’s webpage Nominating a person to support you.

Role of the nominated person (s. 23)

The nominated person must be consulted about treatment and can:

• provide support to the person subject to the order
• help represent their interests
• receive information
• help the person to exercise any of their rights under the Act.

Nominating a person (s. 24)

The nomination must:

• be given in writing and signed and dated by the person making the nomination
• give the name and contact details of the person nominated
• include a statement signed by the nominated person that they agree to be nominated
• be witnessed by an authorised witness.

The authorised witness must make a statement that the person nominating understands the nomination and the consequences of making the nomination. The authorised witness can be a:

• registered mental health practitioner
• mental health practitioner, or
• person authorised to witness statutory declarations.

When must the nominated person be consulted?

There are a large number of situations in which nominated people are relevant under the Act. Some of these situations include:

• issues relating to assessment orders (s. 32(2), 35(4)(a)(i), 37(3)(c)(i), 40(a)
• when a psychiatrist may make a temporary treatment orders (s. 46(2)(iii)) and whether that order should be in the community or as an inpatient (s.48(2)(c))
• when the Mental Health Tribunal considers whether to make a treatment order (s. 55(2)(c))
• when a person does not give consent to treatment and the psychiatrist believes there is no less restrictive way for the patient to be treated (s. 71(4)(c))
• when a person does not have capacity to consent to treatment and the psychiatrist is giving treatment, in determining whether a treatment would benefit a person (s. 76(2)(b)
• when a psychiatrist is preparing a second opinion and determining whether to recommend any changes to treatment (s. 82(d)(ii)(A)), and
• when the Mental Health Tribunal is considering an application to perform electroconvulsive treatment and whether there is a less restrictive way for the person to be treated (s. 93(2)(c)).

Revocation

A nomination can be revoked at any time in writing, as long as it is signed and dated and witnessed by an authorised witness who includes a written statement that the person understands the consequences of revoking the nomination. The person can make a new nomination or the person nominated may have declined to act as a nominated person.

Second psychiatric opinions

The Mental Health Act provides that ‘entitled patients’ (those subject to a temporary treatment order or treatment order, a security patient or forensic patient) have the right to request a second psychiatric opinion at any time (Part 5, Division 4). Requests for second opinions can also be made by a person the patient asks to do so on their behalf, their guardian, parent (if under 16), or the Secretary of the Department of Health, if they are also on a family reunification order or a care by Secretary order.

If an entitled patient seeks a second psychiatric opinion and requests assistance to obtain that opinion, the authorised psychiatrist must ensure that reasonable steps are taken to assist the entitled patient with that request, and a member of staff of a designated mental health service must provide any reasonable assistance required by a psychiatrist giving a second opinion under this Division. The second opinion can be sought from any psychiatrist.

If the second opinion suggests that the criteria for the relevant order are not all met, or recommends changes to current treatment, the authorised psychiatrist must examine the patient as soon as possible after receiving the opinion, assess whether the relevant criteria apply, review the treatment and decide whether to adopt any of the recommendations made in the report.

Where an entitled person has asked for a second psychiatric opinion, and the recommendations in the second psychiatric opinion are not followed or only partially followed by the authorised psychiatrist, the person has a right to apply to the Chief Psychiatrist for a review of the treatment (see Division 4 of Part 5). The Chief Psychiatrist must, to the extent that is reasonable, have regard to the persons views and preferences as expressed in their advance statement (s. 88(3)(b)).

Practice tip

A second psychiatric opinion may be sought from any psychiatrist (s. 80). If the request is made to the service a person is being treated by, another psychiatrist from the same service will conduct the assessment. Alternatively, a second psychiatric opinion can come from another mental health service or a private psychiatrist.

If your client would like to ensure an independent second opinion, they can contact the Second Psychiatric Opinion Service. The Second Psychiatric Opinion Service was specifically established to provide independent second psychiatric opinions to ‘entitled patients’ under the Act, in circumstances when a second opinion via other means is not available or feasible.

More information

• Promoting supported decision-making and recovery-oriented practice
• Role of lawyers in the mental health law jurisdiction
• Getting instructions from your client