Mental Health Act Consultation Feedback Summary

Background

The consultation process for Tranche 1 of the Mental Health Act review implementation was undertaken to confirm if the proposed amendments were consistent with the outcomes report recommendations, and if these amendments were appropriate. The Tranche 1 Amendment Bill is a direct response to the Mental Health Act Review Outcomes Report recommendations.

The consultation period for the draft Amendment Bill for Tranche 1 opened publicly for stakeholder and community feedback before finalising the legislation in preparation for it being tabled in both Houses of Parliament.

The consultation process opened on Tuesday 27 September 2022 and closed on Friday 21 October 2022. Internal and external key stakeholders were notified when the consultation went live, and a dedicated webpage was established on the Office of the Chief Psychiatrist website and guiding documents were provided to support people wishing to make a submission.  

A total of 9 (nine) written submissions were received from the following organisations:

• Ambulance Tasmania
• Department of Treasury and Finance
• Department of Justice
• Flourish Tasmania
• The University of Tasmania-Tasmanian Institute of Law Enforcement Studies
• The Tasmanian Health Service (THS)-Wilfred Lopes Centre
• The Office of the Commissioner for Children and Young People
• Equality Tasmania
• Department of Premier and Cabinet

The Office of the Chief Psychiatrist Lived Experience Advisory Group (LEAG) did not provide a written submission, but the changes were discussed at a dedicated meeting and feedback received. The Project Team decided that it would not be publishing the submissions in full, but rather, a summary of the submissions would be provided to the Legislative Working Group and Steering Committee.

Feedback summary

A summary of the feedback received from these organisations in produced under the headings provided in the Consultation Guide that reflect the proposed primary changes to the Mental Health Act 2013.

Some proposed amendments received more feedback and scrutiny than others. Overall, the main topics that respondents felt strongly about were seclusion and restraint timeframes, terminology around protective custody/detained and stigmatising people with a mental illness, patient Principles and rights, informed consent for minors (particularly should parents be able to provide consent for ECT or special psychiatric treatment), and the extension of the powers of the Official Visitors program.

Merging of the Chief Civil Psychiatrist and Chief Forensic Psychiatrist title

Numerous Sections and clauses of the Mental Health Act 2013

There was overall support amongst stakeholders to merge the Chief Civil Psychiatrist and Chief Forensic Psychiatrist into the one role of the ‘Chief Psychiatrist’, with stakeholders noting the significant consequential amendments required throughout the Bill (and other legislation) where both titles are referenced to replace with the one title. Several respondents commented that having the one title will make the Act much easier to read.

The Contemporary use of State Service Definitions

Numerous Sections and clauses of the Mental Health Act 2013

Respondents had no issues with omitting references to State Servant and substituting with State Service employee, however, several questioned whether this definition would also apply to contractors as well as State Service employees. The MHA Implementation Project Team noted this for further clarification and discussion with Legal Services-Department of Health.

The meaning of mental illness

Section 4

There was overall lived experience and advocacy support about the updated meaning of mental illness.

Equality Tasmania broadly supported the proposed amendments and expressed that the inclusion of gender identity and expression within the list of exclusions was long overdue, and without these changes, the Bill would not represent contemporary language and the understanding of mental illness. Furthermore, it was proposed that the Mental Health Service Delivery Principles could be strengthened to support this and ensure the appropriate level of sensitivity and respect for LGBTQIA+ Tasmanians when they access public mental health services.

It was also acknowledged that the proposed amendments are consistent with contemporary medical and psychiatric scholarship locally and internationally, which recognises that gender non-conformity does not constitute the diagnosis of a mental disorder.

Feedback received also noted that the DSM-V together with the World Health Organisation diagnostic manual recognise that transgender and gender non-conforming individuals should not be diagnosed with a mental disorder because of their gender identity or sexual preference.

Consent to assessment and treatment

Section 6(d), 8 (d)

There was overall support from respondents about the proposal to remove the terms ‘examine’, ‘monitor’ and ‘evaluate’ and replace with ‘assess’ and that these changed reflect the stated goals and actions of the review implementation.

Mental Health Act 2013-Protective Custody

Chapter 2, Part 2

The proposed changes to language around Protective Custody was largely supported by respondents with the main emphasis being on removing any reference to criminal or punitive elements and stigmatising people with mental health issues.

The LEAG suggested replacing this phrase with a verb such as ‘detain’ rather than a noun such as ‘detention’ so that the phrase could instead read ‘detain on a temporary basis for the purposes of assessment’.

Ambulance Tasmania provided lengthy input into the proposed amendments to change the time a person can be in protective custody to four hours after a member of staff at the assessment facility has been made aware of the persons arrival. Ambulance Tasmania have specific concerns about resourcing implications for their service, and delays in triage and ramping. This issue relates to the legal advice received which outlines that the four hours from the persons arrival commences if the ambulance is ramped, regardless of whether the person has physically entered the building.

Flourish Tasmania expressed concern about what happens if the person isn’t assessed within the four-hour window due to delays in EDs, and the scenario of the person being taken into protective custody again immediately after leaving the facility.

Seclusion and Restraint

Division 5, Section 56, Division 2, Section 94 (Forensic patients), Section 57

There was overall support from respondents about the reduction of seclusion and restraint from 4 hours to 3 hours.

Respondents were pleased that chemical and mechanical restraint will have more oversight in the proposed Bill and highlighted the need for this to be clearly reflected in new Standing Orders and Clinical Guidelines, as well as the distinction between the different restraint definitions under the Act.

The LEAG suggested that any wording in the new Bill around an extension of 3 hours for seclusion or restraint be reflected as a ‘new episode’ instead of an extension.

The issue of what constitutes chemical restraint and services under-reporting remains of concern for the LEAG and highlighted further work needs to be done in Tranche 2 of the implementation.

Flourish Tasmania was generally supportive however, expressed concern about 3 hours still being too long for someone to be physically restrained.

LEAG members felt that there should continue to be clear distinctions between chemical and mechanical restraint in the new Bill and in any Standing Orders or Clinical Guidelines. The LEAG expressed a need to provide more robust input into seclusion and restraint provisions in Tranche 2.

It was agreed that the Mental Health Act Review Implementation Project team would look at the wording in the Bill to ensure any extension of the 3- hour provision reflects a ‘new episode’ instead of an extension.

Urgent Circumstances Treatment (UCT)

Division 4 and Section 55

Flourish Tasmania expressed concerns that some of the proposed changes do not address the historical issue of the overuse of Urgent Circumstances Treatment, however, supported the change in language from ‘best interests’ to ‘necessary’ as this strengthens patients’ rights

The LEAG outlined the importance of balancing constructive family input where they have a positive relationship with the person being assessed treated as they can often provide the whole picture. However, it was noted that there are often scenarios where there is conflict within family. The family may not be representing the best interests of the person in some scenarios and some LEAG members felt that in these instances, consumers may not want their information shared with family members.

Transfer and Patient Movements

Division 6 and Section 59

There was overall support from respondents about the proposed amendments.

Patient Leave

Section 60-Leave of absence from approved hospital

Respondents supported the proposal to remove the requirement for a leave request form to be completed and this be replaced by a verbal request made to the treating team instead (and that this be documented on the patients file).

Admissions and Secure Mental Health Unit

Divisions 8, Section 63, and Section 64

There was general support regarding the proposed amendment to remove the requirement for forensic patients in the Secure Mental Health Unit (SMHU) to be transferred to an approved hospital to be reassessed if their Restriction Order has been discharged, but they continue to require treatment in the SMHU. One respondent noted that there was an error in the Consultation Guide where Secure Mental Health Units were referred to as ‘Statewide Mental Health Units’.

The use of term Aborigine

Section 3, Part 2, Chapter 2

Some respondents felt strongly about removing the term ‘aborigine’ not reflecting the view of the Tasmanian Aboriginal community. There was discussion about the removal of this term been consistent with other Tasmanian legislation making it a more contemporary term, however it was highlighted that ‘aborigine’ is often used by this community. It was also acknowledged that there are multiple aboriginal communities in Tasmania, and there may be differing views about the agreed terms and language that should be applied to legislation.

Although the intention behind changing the term to Aborigine would better align with definitions within existing legislation (such as the Aboriginal Lands Act 1995), there was acknowledgement that there should be targeted consultation with the aboriginal community in Tranche 2 of the implementation phase before adjusting any terminology.

Informed consent of children

Sections 8, 9

These amendments were mostly supported, however several respondents raised strong concerns about the appropriateness of children receiving ECTs and the appropriateness of parental consent for this procedure.

The LEAG raised concerns about the potential for parents to provide consent for children to receive ‘special psychiatric treatment’ and if this includes ECT, expressing concerns that the children’s brains are still developing, and this should not be an option. 

Flourish Tasmania raised strong concerns that consent for minors to receive ECT should be a separate process after other treatment options have been tried without effect, and that a child advocate should be available if there is no parent or guardian to provide consent.

After discussions with Legal Services-Department of Health, parental consent for special psychiatric treatment was removed. However, the Acting Chief Psychiatrist has confirmed that in any case, ECT would not come under the umbrella of special psychiatric treatment because it does not cause structural changes to the brain anatomy that occurs in psychosurgery.  TASCAT have oversight of the administration of Treatment Orders which includes approval of ECTs as appropriate, and data supports that the use of ECT for minors is extremely rare.

Definition of a parent

Chapter 2, Part 2

These proposed changes to broaden the definition of a parent were generally supported except for one respondent who felt that the definition of ‘parent’ is not contemporary with other Acts and instead ‘guardian’ should be used.

Respondents acknowledged that parental consent can be complex where there are shared care arrangements in place and there is often conflict and differing opinions about the child’s treatment and care.  The LEAG suggested it may be appropriate to investigate how this is managed in other jurisdictions.

LEAG members were very supportive of consent been extended to guardians which may include grandparents and cautioned against moving away from the term ‘care’ in the legislation and this is often an important for family members.

The Commissioner for Children supported the proposed amendments; allowing for a broader range of carers to be able to lawfully provide consent for assessment and treatment, highlighting that there can be complexities about substitute consent for children who lack decision-making capacity. Examples highlighted including if a parent or guardian is unavailable, if they are unwilling to provide consent, where there is parental conflict or shared care arrangements, or if the parent or guardian does not have decision making capacity themselves. The Commissioner suggested further discussion with the Chief Psychiatrist about further amendments to s9 in relation to special psychiatric treatment, which may include psychosurgery.

The term ‘legal custody’ was raised by the Commissioner as needing further clarification in the Bill, for example, if the child is in the custody of the police, or under the care of the Secretary pursuant to the Youth Justice Act 1997.

Principles and Rights

Part 1, Section 15, Section 15A

These amendments attracted extensive feedback from respondents and were mostly supported by respondents.

The LEAG felt very strongly about the proposed change of wording from “principles and rights’ to ‘rights and policies. They felt that ‘principles and rights’ in the heading is fundamental and should remain as is.

LEAG members also suggested strengthening some of the wording in this section such as ‘where appropriate, involving families as required’ to acknowledge the role some families play in the caring role and that they often have a wealth of information, regardless of the person stating they do not give consent to speak with families or share information.

Flourish Tasmania felt that the proposed amendments meet part of the objectives to harmonise patient rights but felt that there could be stronger links between Principles and service delivery and how these Principles are put into practice.

The Commissioner for Children was very positive about the proposed amendments relating to the promotion of the rights, wellbeing, and safety of children under the Act.

UTAS expressed support for the human rights language in the Principles being more transparent and simplified and suggested that s 49 where there is a reference to nutrition be a more objective test by replacing nutrition that is ‘adequate to maintain’ with ‘nutrition that is consistent with contemporary evidence to promote health’. UTAS also welcomed highlighting trauma-informed practice in the Principles and questioned whether sensory modulation could be incorporated into the Principles based on current research that found staff and service users find sensory modulation effective in reducing stress and feeling overwhelmed.

Equality Tasmania expressed concern that that the inclusion of the principles in a schedule may result in them being overlooked, or not having the appropriate level if significance, and felt that including the Principles in the body of the Act would underpin the purpose of the Act, simplify the Act, and better align with the review outcome. Equality Tasmania were supportive of embedding that the Act must have regard to people’s gender identity, sexual preferences, and other personal factors.

It is worth noting under this section of amendments that supported decision-making will also be considered in Tranche 2.

Assessment Orders

Part 3, Division 1, Section 22

These amendments were supported by respondents.

The LEAG had no issue with removing Section 23 to enable a medical practitioner to make an assessment order without an examination if they are satisfied that the person meets the assessment criteria. Flourish Tasmania was supportive of these amendments aside from the inclusion of ‘available’ in this clause being of some concern.

Notifying victims of final release of forensic patients in the community

Section 119

These amendments were supported by respondents other than the wording ‘as soon as practical’ be reviewed as there may be challenges about how this is interpreted in practice.

Official Visitors Program

Sections 156, 157, 161, 163

The proposed amendments under these sections to expand and strengthen the oversight role of the Official Visitors was well supported by respondents, including providing the powers to access patients records in relation to concerns about a patient’s assessment, treatment, and care.

Flourish Tasmania was supportive of the proposed amendments but felt the amendments won’t fully address complaints management.

The Children’s Commissioner welcomed the proposed amendments intended to strengthen the rights of children, particularly to be able to make complaints to an Official Visitor regardless of whether they have the consent of their parent/guardian. The Children Commissioner was also supportive of Official Visitors being able to review the admission and detention of children to ensure services are compliant under the Act, whilst highlighting that any discussions with children are age appropriate, child safe and child centred. The Commissioner suggested further discussion with the Official Visitors to discuss additional training, resourcing and qualifications required to enact these child-related functions.

The LEAG was very supportive about expanding the Official Visitor role including being able to access patient records where there are concerns about a patient’s assessment, treatment, and care.  

UTAS felt that the roles of the Official Visitors should be strengthened to outline if the Official Visitors can report about when the Acts Objects and Principles aren’t being upheld, what the mechanisms are, and that this be transparent to the public. UTAS outlined they still weren’t clear about whether the Official Visitors can make a complaint on behalf of a patient and outlined concerns that some patients may not have capacity to make a complaint and they may be disadvantaged if the Official Visitors are not able to make a complaint on their behalf.

Review timeframes

Section 182

The proposed amendments to change the time TASCAT must review the admission to a SMHU from 3-7 days was supported by some respondents.

However, Flourish Tasmania did not support the amendments and felt that TASCAT reviews already happen too late following an admission, this will further exacerbate the issue, and these amendments do not align with this review outcome.