Towards a consumer-centred mental health system? An exploration of the Mental Health and Wellbeing Act 2022 (Vic)

Date published

20/12/2022

Services

Sectors

Locations

On 6 September 2022, the Mental Health and Wellbeing Act 2022 (Vic) (“MHWA”) received Royal Assent. The MHWA comes into force on 1 September 2023,[1] and marks the second time in eight years that mental health laws have undergone substantial reform in Victoria.

The MHWA and the repeal of its predecessor, the Mental Health Act 2014 (“MHA 2014”) was one of the key recommendations of the Royal Commission into Victoria’s Mental Health System, (RCVMHS).[2] Combined with other recommendations such as the phasing out of seclusion and restraint,[3] a greater emphasis on supported decision-making for mental health consumers[4],[5] and a commitment to compulsory treatment only being used as a last resort,[6] the Royal Commission’s recommendations seek to transform Victoria’s mental health system from one which has ‘catastrophically failed to live up to expectations’,[7] into a system that “encourage[s] a human rights-based culture to flourish”.[8]

The MHWA is an enormous piece of legislation, totalling some 652 pages, which ushers in wide-ranging reforms to the mental health system. These reforms range from the institutional and administrative to other consumer-centred, rights-based reforms. The MHWA is intended to “empower and engage with all the people” who use Victoria’s mental health system and increase the system’s accessibility while “support[ing] the agency and autonomy of people who engage with the mental health and wellbeing system”.[9]

The question that must be asked is whether the MHWA has the capacity to deliver a fairer, more compassionate mental health system focussed on consumer recovery and support, a system which encourages a human rights-based culture to flourish? This article will consider this question by looking at three areas of reform ushered in by the MHWA. First, the MHWA’s supported decision-making reforms, which seek to support consumers to exercise their decision-making capacity. Second, the reforms to compulsory treatment and assessment will be considered, all of which have proven controversial. Third, the MHWA’s reforms to the use of seclusion and restraint will be discussed, and the unfinished work of the MHWA in this area will be assessed. Finally, this article will conclude with a forward-looking assessment on the future of the MHWA and why legislative reform alone is insufficient to achieve a consumer-centred, rights-based mental health system.

Supported decision-making

Supported decision-making is an approach to clinical decision-making in the mental health system that has become more increasingly central in mental health policy since the United Nations (“UN”) treaty on the human rights of persons with disabilities, the Convention on the Rights of Persons with Disabilities (“CRPD”),[10] came into force.[11] Article 12 of the CRPD  provides that persons with disabilities (which includes persons with mental illness)[12] are to be recognised as equal before the law, and “enjoy legal capacity on an equal basis with others in all aspects of life”.[13] The UN Committee on the Rights of Persons with Disabilities, the body established to monitor compliance with the CRPD, has interpreted article 12 of the CRPD as requiring the abolishment of all forms of substitute decision-making.[14] Supported decision-making “invites people to support but not take over the decisions of people in mental health crises”,[15] adhering to the “rights, will and preferences” of the consumer.[16] Supported decision-making can be contrasted with substitute decision-making in which decisions are made for a consumer based on their supposed best interests.[17]

The MHWA recognises that supported decision-making practices “are to be promoted” and that consumers “are to be supported to make decisions and to be involved in decisions about their assessment, treatment and recovery including when they are receiving compulsory treatment” and prioritises the views and preferences of the consumer.[18] Relatedly, the MHWA recognises that consumers are to be afforded the dignity of risk while balancing the duty of care owed to persons experiencing mental illness of psychological distress.[19] As part of the embedding of supported decision-making into the MHWA, consumers are able to nominate support persons who may perform a number of functions, including advocate for the views and preferences of the consumer and to support the consumer to make and participate in decisions.[20]

The MHA 2014 recognised, as one of a number of “mental health principles”, that consumers of 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”.[21] The MHA 2014 also made provision for the appointment of nominated persons who could similarly provide the consumer with “support and to help represent the interests of the patient”.[22] The old legislation is  strikingly similar to the MHWA, although nominated support persons under the MHWA appear to have their role and its link with supported decision-making grounded in a human rights-based approach more clearly defined. Given the failures of the old legislation to deliver the sort of rights-based reform it was intended to usher in, it remains to be seen whether the paramountcy given to supported decision-making in the MHWA will deliver practical reform for consumers. The effect that this legislative change will have is particularly important, given the tension between supported decision-making based on rights, will, and preferences and compulsory treatment.

Compulsory treatment

Ending compulsory treatment and assessment was not recommended by the Royal Commission, nor was any recommendation made to phase out its practice. Thus, under the MHWA, a consumer may be treated involuntarily if:

  • they have a mental illness;
  • that because of that illness they need immediate treatment to prevent serious deterioration in the consumer’s mental or physical health or serious harm to another person; and
  • there are no less restrictive means reasonably available to receive the immediate treatment.[23]

This criteria is almost an exact replica of the criteria under the MHA 2014. Nevertheless, the MHWA professes that one of the mental health and wellbeing principles is that the rights, dignity, and autonomy of a person living with mental illness or psychological distress is to be promoted and protected.[24] Compulsory treatment appears to stand at odds with this and its retention in the MHWA has proven controversial for consumers,[25] although its retention (but reduction in its use) has been supported by professional bodies such as the Royal Australian and New Zealand College of Psychiatrists.[26]

Seclusion and restraint

The MHWA authorises the use of “restrictive intervention” (seclusion, bodily restraint (physical or mechanical) or chemical restraint)[27] to prevent imminent and serious harm to the consumer or another person or, in the case of bodily restraint, to administer treatment or medical treatment to the consumer.[28] However, restrictive intervention may only be used if necessary and all other reasonable and less restrictive options have been tried or considered and been found unsuitable.[29] The MHWA also provides that restrictive interventions offer “no inherent therapeutic benefit to the person”.[30] The MHWA further provides that restrictive interventions “are not to be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm … that may result from [its] use”.[31] One of the notable developments of the MHWA is that it provides that mental health services and persons who perform functions and exercise powers under the MHWA (for example, psychiatrists and other mental health clinicians) “should aim to” reduce the use of restrictive interventions and “eventually eliminate” the use of such practices in mental health treatment.[32] Yet, no concrete timeline is provided within which restrictive practices are to be eliminated, nor are any reduction benchmarks mandated. It will therefore require the commitment of mental health services, individual clinicians together with regulatory enforcement  to achieve these goals.

The MHWA’s approach to restrictive interventions is an improvement on the old legislation. While the MHA 2014 also provided that restrictive interventions were to be a last resort,[33] the MHA 2014 provided more complicated regulation in which it had separate provisions for various forms of practices now grouped under the hypernym restrictive interventions in the MHWA. The new approach under the MHWA, appers to be a a more sensible approach,  which may go some way to relieving the regulatory burden on mental health services and clinicians,  which itself in turn may assist compliance. The new legislation also removes the possibility of urgent bodily restraint without authorisation, requiring all instances of restrictive practices be authorised.[34]

The Victorian Charter of Human Rights and Responsibilities

The beneficial impact of the MHWA will also be determined by the extent to which the Victorian Charter of Human Rights and Responsibilities (“Charter”) is complied with in the exercise of powers under the MHWA.[35] As public authorities, decisions made and powers exercised by public mental health service providers and the Mental Health Tribunal under the MHWA must be compatible with human rights and proper consideration must be had of consumers’ human rights.[36] Key rights engaged by decisions made and powers exercised under the MHWA include the right to equality before the law,[37] the right to freedom from torture and cruel, inhuman or degrading treatment,[38] including the right to not be subjected to medical treatment with full, free and informed consent,[39] and the right to freedom of movement,[40] among others.

Because of the ‘universal character of human rights’, these human rights apply equally to consumers of mental health services and individuals experiencing mental distress because these rights are ‘founded on the inherent dignity fo all human beings’.[41] The human rights impacts of mental health treatment decisions means that, under the MHWA (like the MHA 2014) and the Charter, clinicians and authorities empowered under the MHWA, cannot simply make mental health decisions as a ‘best-interests trade-off between the person’s autonomy and health because health is a broad concept that relates to the whole person of which the person’s autonomy, while not absolute, is a constitutive element’.[42] If anything, the Charter requires the fulfilment of the ‘multifaceted nature of the human right to health’ in which recovery is understood as requiring the maximisation of ‘individual choice, autonomy, opportunity and well-being during a person’s life’, which is a highly individual process.[43]

International reforms

Reform of mental health legislation is taking place across the world, and to understand the full potential for the MHWA one needs to understand the scale of the reform undertaken elsewhere. The government of the United Kingdom has published a draft Mental Health Bill,[44] the intention of which is to deliver “major reforms to outdated mental health laws in England and Wales”.[45] This includes giving greater choice and autonomy to consumers and embedding principles around the least restrictive use of coercive powers.[46] However, the changes to mental health law maintain a system that allows for the overriding of the will and preferences of consumers, including by force in situations where consumers’ right to autonomy is to be outweighed by other considerations. The draft bill has not yet been introduced in the Parliament.

In contrast, Peru achieved more radical reform of its mental health system in 2018, delivering on the right to legal capacity of persons with disabilities, and abolishing disability-related guardianship and other restrictions on the right to legal capacity.[47] In 2019, Peru introduced a new Mental Health Act[48] which “neither refers to involuntary hospitalization and treatment, nor seclusion and restraints”.[49] The Act requires that mental health care be provided voluntarily and that hospitalisation is to be an exceptional therapeutic response.[50] However, the legislation has still proven controversial for civil society: it has been argued that “the law maintains a biomedical approach to mental health, giving priority to the administration of medication and failing to address the social determinates of health” and that, while the Act does not refer to the involuntary hospitalisation and treatment of people, consumers can still “be ’interred’ during psychiatric emergencies without their consent”.[51] The Peru Act also includes no mechanism to give effect to supported decision-making.[52]

Thus, reforms to Victoria’s mental health laws can be seen in the midst of imperfect reforms internationally. Nevertheless, the MHWA ought not be limited by what has hitherto been considered possible in legislative reform. Rather, a truly consumer-centred, human rights-based mental health system requires that policymakers and legislators be bold when protecting the rights of mental health consumers. 

Conclusion

With the MHWA, Victoria has a unique opportunity to create a consumer-centred, human rights-based mental health system which prioritises access to mental health care at its centre. However, well-intentioned law reform alone can only take the system so far in this direction. It must be combined with training of mental health services and clinicians to develop “a comprehensive understanding” of the rights of consumers under the MHWA.[53] This will ensure that rights are not merely illusory.[54]

It will also require the redesign of models of care and the very way in which mental health services are delivered. To realise the aims of the new Act, mental health services and clinicians will be required to have knowledge of, and engage with, the rights principles of the MHWA and other human rights instruments such as the Charter and the CRPD itself. This is what creating a consumer-centred, human rights-based mental health system requires and what is necessary for the MHWA to have practical effect for consumers. When the MHWA falls to be reviewed by 2029, it should be possible  to look at the Act and see the changes it has created.

Acknowledgement

We are grateful to Robert Tobin, Head of Medical Law at Kennedys Law and Partner in Kennedys’ Cambridge, UK office for his views and assistance with this article.

This article was co-authored by Scott Walker, Paralegal, and originally published in Volume 30 No. 9 & 10 of the Australian Health Law Bulletin. 

References

[1] Mental Health and Wellbeing Act 2022 (Vic) s 2(2) (‘MHWA’).

[2] Royal Commission into Victoria’s Mental Health System (Final Report, February 2021) summary and recommendations, p 78 (recommendation 42) (‘RCVMHS Final Report’).

[3] RCVMHS Final Report, above n 2, p 90 (recommendation 54).

[4]  The term ‘consumer’ is used to describe people who use or have used mental health services. The authors  acknowledge that there are many other terms which can be used to describe these experiences and recognise that language in this area is contested and that persons with lived experience of mental illness may adopt different language to describe their experiences.

[5] RCVMHS Final Report, above n 2, p 92 (recommendation 56).

[6] RCVMHS Final Report, above n 2, p 91 (recommendation 55).

[7] Royal Commission into Victoria’s Mental Health System (Interim Report, November 2019), p 12.

[8] RCVMHS Final Report, above n 2, vol 4, p 35.

[9] Victoria, Parliamentary Debates, Legislative Assembly, 23 June 2022, 2644 (James Merlino, Minister for Education and Minister for Mental Health).

[10] Convention on the Rights of Persons with Disabilities, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRPD’).

[11] M Simmons and P Gooding ”Spot the Difference: Shared Decision-Making and Supported Decision-Making in Mental Health’”(2017) 34 Irish Journal of Psychological Medicine 274,  278.

[12] CRPD, above n 10, art 1.

[13] CRPD, above n 10, art 12(1)-(2).

[14] See, Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12 – Equal Recognition Before the Law, UN Doc CRPD/C/GC/1 (19 May 2014) paras 7, 9, 25 (‘General Comment No 1’). The authors note that Australia does not agree with this interpretation of art 12 adopted by the Committee, and considers that ‘fully supported or substituted decision-making arrangements which provide for decisions to be made on behalf of a person’ are compatible as necessary and as a last resort: Convention on the Rights of Persons with Disabilities: Declarations and Reservations (Australia), opened for signature 30 March 2007, 2515 UNTS 3.

[15]  General Comment No 1, UN Doc CRPD/C/GC/1 (n 14)278.

[16] CRPD, above n 10,  art 12(3). The Committee on the Rights of Persons with Disabilities has elaborated on this concept of ‘rights will and preferences’: see, Committee on the Rights of Persons with Disabilities, General Comment No 1, UN Doc CRPD/C/GC/1 (n 14)paras 16-19.

[17] The Committee on the Rights of Persons with Disabilities noted that “[s]ubstitute decision-making regimes can take many forms”, but that they can be defined as systems where (i) a person’s legal capacity is removed; (ii) a substitute decision-maker can be appointed by another person even against their will; and (iii) any decision is made on the best interests of the person, not their will and preferences: General Comment No 1, UN Doc CRPD/C/GC/1 (n 14) para 27.

[18] MHWA, above n 1, s 19.

[19] MHWA, above n 1, s 23.

[20] MHWA, above n 1, s 61(1)(a)-(b).

[21] Mental Health Act 2014, (Vic),  s 11(1)(c) (‘MHA 2014’).

[22] MHA 2014, above n 21, s 12(a).

[23] MHWA, above n 1, s 143.

[24] MHA 2014, above n 21,s 16.

[25] The Victorian Mental Illness Awareness Council (VMIAC), the peak organisation for people with lived experience of mental illness, recommended in consultation on the MHWA that the legislation must deter the use of compulsory treatment: Victorian Mental Illness Awareness Council (VMIAC), Submission to Engage Victoria, Mental Health and Wellbeing Act (2021) p 3.

[26] Royal Australian College of Psychiatrists, ‘Victorian Psychiatrists Call for Careful Consideration on New Legislation’ (Press Release, 31 August 2021) <https://www.ranzcp.org/news-policy/news-archive/news-archive-2021/victorian-psychiatrists-call-for-careful-considera>. .

[27] MHWA, above n 1, s 3(1).

[28] MHWA, above n 1, s 127.

[29] MHWA, above n 1, s 128.

[30] MHWA, above n 1, s 81.

[31] MHWA, above n 1, s 82.

[32] MHWA, above n 1, s 125.

[33] MHA 2014, above n 21, ss 105, 110, s 113.

[34] Cf. MHA 2014, above n 21, s 115.

[35] Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’).

[36] Charter, above n 35, s 38(1).

[37] Charter, above n 35, 8.

[38] Charter, above n 35, 10.

[39] Charter,above n 35, 10(c).

[40] Charter, above n 35, 12.

[41] PBU & NJE v Mental Health Tribunal (2018) 56 VR 141, 164 [83] (Bell J) (‘PBU v NJE’), quoting, Surrey County Council v P [2014] AC 896, 896, 919 [45] (Baroness Hale DPSC, with whom Lord Neuberger, Lord Sumption and Lord Kerr JJSC agreed).

[42] PBU v NJE, above 41, 192 [105] (Bell J). His Honour was here talking in the context of the MHA 2014, but the comments are equally applicable to the MHWA.

[43] PBU & NJE, above n 41, 171 [103] (Bell J), quoting, Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2014, 471 (Mary Wooldridge, Minister for Mental Health).

[44] Mental Health Bill 2022 (UK).

[45] C Dyer "Reforms to Mental Health Laws will Prioritise Care and Patient Choice" (2022) 377 British Medical Journal 1, 1.

[46] Above n 44.

[47] Legislative Decree No 1384 (Peru).

[48] Mental Health Act 2019 (Peru).

[49] A Vásquez Encalada "The Potential of the Legal Capacity Reform in Peru to Transform Mental Health Provision" in Mental Health, Legal Capacity, and Human Rights, Michael Ashley Stein et al (Eds), Cambridge University Press, 2021.  p 133.

[50] Mental Health Act 2019 (Peru) arts 8-9, 27.1.

[51] Encalada, above n 49, p 133.

[52] Encalada, above n 49, p 134.

[53] N Gill ”Human Rights Framework: An Ethical Imperative for Psychiatry” (2019) 53(1) Australia and New Zealand Journal of Psychiatry 8, 8.

[54] The rights protections under the MHA 2014 has been described as ‘illusory’: see, C Maylea et al” Consumers’ Experiences of Rights-based Mental Health Laws: Lessons from Victoria, Australia”(2021) 78 International Journal of Law and Psychiatry 1, 4.