Mental Health Act 2013: Review of the Act’S Operation
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MENTAL HEALTH ACT 2013: REVIEW OF THE ACT’S OPERATION OUTCOMES REPORT Date: June 2020 This Outcomes Report has been prepared by the Office of the Chief Psychiatrist for the Minister for Mental Health and Wellbeing the Hon Jeremy Rockliff MP. The Office of the Chief Psychiatrist takes no responsibility for the accuracy, completeness or relevance of the information provided in the Report. People using it for whatever purpose are advised to verify the information with the relevant State government department or other source and to obtain any appropriate advice. The Crown, its officers, employees and agents do not accept liability however arising for any loss resulting from the use of or reliance upon the information. The observations made in this Report are the observations of the Office of the Chief Psychiatrist and may not reflect the views of the Crown in right of Tasmania. Excerpts from this publication may be reproduced, with appropriate acknowledgement, as permitted under the Copyright Act 1968. For further information, please contact: Office of the Chief Psychiatrist GPO Box 125 HOBART TAS 7001 Page 2 of 198 Foreword The Mental Health Act 2013 (Tas) was developed over many years with input and expert advice from a wide range of stakeholders. When the Act commenced on 17 February 2014, it represented a significant reform in how people who live with mental illness are assessed and treated. The Tasmanian Government at the time included a requirement that the Minister for Mental Health and Wellbeing review the Act’s operation after six years of it commencing. The Act’s operation has now been reviewed and I am pleased as Minister for Mental Health and Wellbeing, to table this Report on the outcome of the review. The review confirms that the Act has had a positive impact on how people who live with mental illness are assessed and treated in Tasmania, and also identifies some issues with aspects of the Act’s operation. The Report describes the review process, and the outcomes of that process. It also identifies ways in which the issues identified through the review and noted in this Report can be addressed. I sincerely thank the people and organisations who have contributed to the review, including members of the Steering Committee and each of the Reference Groups established to guide and support the review, and the many individuals who have taken the time to document their experiences of the Act and provide a submission to be considered through the review process. The review was completed shortly before the Director of Public Health declared a public health emergency relating to coronavirus disease 2019 (COVID-19) in Tasmania. The health and economic effects of this disease are likely to be long lasting, and I acknowledge this may impact on the steps that can be taken to implement the Government’s response to this report in the short and potentially medium term. I look forward to working with stakeholders to improve the Act’s operation in due course. The Hon Jeremy Rockliff MP Minister for Mental Health and Wellbeing June 2020 Page 3 of 198 Contents Acknowledgements 8 Executive Summary 9 Language Used in This Document 9 1. Introduction 10 1.1 Background to the Act 10 1.2 Background to the Review 10 1.3 Conduct of the Review 11 1.4 About this Outcomes Report 13 2. Policy and Legal Context 16 2.1 National Context 16 2.2 Tasmanian Context 19 2.3 Other Developments 22 3. Overview of the Act’s Provisions 24 4. The Act’s Objects and Mental Health Service Delivery Principles 25 4.1 The Act’s Objects 25 4.2 Mental Health Service Delivery Principles 29 5. Key Concepts 32 5.1 Decision-Making Capacity 32 5.2 Meaning of Mental Illness 37 6. Assessment Framework and Assessment Orders 40 6.1 Assessment Framework 40 6.2 Assessment Orders 42 7. Treatment Framework and Treatment Orders 47 7.1 Treatment Framework 47 7.2 Treatment Orders 53 7.3 Special Psychiatric Treatment 61 8. Assessment and Treatment for Children 65 8.1 Assessment and Treatment with Informed Consent 65 Page 4 of 198 8.2 Assessment or Treatment as an Involuntary Patient 66 8.3 Treatment in Other Circumstances 67 9. Involuntary Patient Transfers, Leave and Rights 71 9.1 Involuntary Patient Transfer Between Approved Hospitals 71 9.2 Involuntary Patient Leave 71 9.3 Absence Without Leave 71 9.4 Involuntary Patient Rights 72 10. Forensic Patients 77 10.1 Admission 77 10.2 Duration of Detention 78 10.3 Forensic Patient Movements and Forensic Patient Leave 81 10.4 Forensic Patient Treatment 86 10.5 Forensic Patient Management 88 10.6 Forensic Patient Rights 90 11. Seclusion and Restraint 94 11.1 Seclusion 95 11.2 Restraint 97 11.3 Matters in Common 99 11.4 Emergency Short-Term Restraint 100 12. Protective Custody and Patient Escort 103 12.1 Protective Custody 103 12.2 Patient Escort 104 12.3 Matters in Common 104 13. Approved Facilities and Personnel 109 13.1 Approved Facilities 109 13.2 Approved Personnel 110 14. Information Management 114 14.1 Notifications 114 14.2 Withholding Information 115 14.3 Prohibition on Publication 115 14.4 Disclosure of Confidential or Personal Information 115 Page 5 of 198 14.5 Record Keeping 115 14.6 Information for Parents 116 15. Mental Health Tribunal 118 15.1 Tribunal Establishment, Powers and Functions 118 15.2 Establishment 118 15.3 Functions and Powers 119 15.4 Tribunal Proceedings 122 15.5 Other Developments 124 16. Official Visitors 128 16.1 The Principal Official Visitor 128 16.2 Official Visitors 129 16.3 Visits 130 16.4 Complaints 131 17. Chief Civil Psychiatrist and Chief Forensic Psychiatrist 134 17.1 Responsibilities 134 17.2 Powers and Functions 135 18. Interstate Arrangements 141 18.1 Interstate Transfer Agreements 141 18.2 Interstate Control Agreements 141 18.3 Tasmanian Context 141 18.4 Other Developments 141 19. Other Matters 143 19.1 Rights and Responsibilities of Carers and Family Members 143 19.2 Offences and Immunities 145 19.3 Remote Medical Procedures, Powers of Sedation, Conflicts of Interest and Correction of Orders 146 19.4 Any Other Aspects of the Act’s Operation 147 Appendix A Review Outcomes 154 Appendix B Government Response to Review Outcomes 159 Appendix C Glossary of Terms 173 Appendix D Governance Arrangements 176 Page 6 of 198 Appendix E Questions Asked 177 Appendix F Representative Bodies or Groups 181 Appendix G Mental Health Service Delivery Principles 182 Appendix H Meaning of Mental Illness 183 Appendix I Involuntary Patient Rights 184 Appendix J Forensic Patient Rights 187 Appendix K Record Keeping Requirements 190 Appendix L Mental Health Tribunal Review Functions 195 Appendix M Chief Psychiatrist Approved Forms 197 Page 7 of 198 Acknowledgements This Outcomes Report and the Consultation Document that preceded it were prepared by the Office of the Chief Psychiatrist with input from members of a Project Steering Committee. The Outcomes Report and Consultation Document can be accessed from www.health.tas.gov.au/mhactreview or sent to you by the Office of the Chief Psychiatrist. The Office of the Chief Psychiatrist can be contacted on: Email: [email protected] Post: Mental Health Act 2013 – 2020 Review Office of the Chief Psychiatrist Mental Health, Alcohol and Drug Directorate GPO Box 125 HOBART TAS 7001 Phone: 03 6166 0778 Page 8 of 198 Executive Summary The Minister for Mental Health and Wellbeing is required under section 229 of the Mental Health Act 2013 (the Act) to review the operation of the Act, and complete the review, within six years after the Act’s commencement. This Outcomes Report provides background to the Act and to the review. It outlines the Act’s provisions and explains the review process. It also details feedback received from respondents on the Act’s operation and summarises the feedback in 29 review outcomes. Lastly the Report suggests legislative and other responses that will be taken in the coming months to address the review outcomes. The review has confirmed that the Act has had a generally positive impact on how people who live with mental illness are assessed and treated in Tasmania. Feedback about the Act’s positive impact is not uniform, and the review has suggested some issues with the Act’s operation. These range from issues with the way the Act is understood to problems with its provisions. Reasons given for this were varied and included broader issues affecting the health system in Tasmania, lack of a clear or shared understanding about the Act’s requirements, insufficient resourcing and lack of clarity in some of the Act’s provisions. The Review Outcomes, and the Government’s Response to those Outcomes, are referred to throughout the document. The Review Outcomes are extracted at Appendix A while the Government’s Responses to those Outcomes are extracted at Appendix B for ease of reading. Language Used in This Document This document uses language that is generally consistent with the language used in the Act except with respect to the term “persons”, which has been replaced with “people” wherever possible. A glossary of terms used frequently in this document is included at Appendix C. Page 9 of 198 1. Introduction 1.1 Background to the Act The Mental Health Act 2013 (Tas) (the Act) provides for the assessment and treatment of mental illness. It commenced on 17 February 2014. The Act was amended in 2016 to clarify and improve the Act’s operation in response to feedback received from clinicians and the Mental Health Tribunal about certain aspects of the legislation.