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Objective: To evaluate the medical assessments of involuntary community patients in a regional mental health service, determine the compliance with requirements under Queensland’s Mental Health Act 2016 (the Act) to regularly review orders and assess patients’ mental capacity. Method: We audited 183 patient records on community treatment authorities (CTAs) to determine whether medical assessments undertaken under the Act included consideration of the person’s capacity, and regular reviews by an authorised doctor as required1s205. Results: The audit revealed that 51% of the CTA patients did not comply with legal requirements either to complete a capacity assessment and/or be medically assessed within three months of the last review. Conclusions: Over 50% of medical assessments did not comply with the legislative requirements to record capacity assessments and review involuntary treatment on at least a three-month basis. However, when the treatment criteria were met, it did not appear to be a basis for CTA revocation. Further research may help determine whether the Mental Health Review Tribunal (Tribunal) could play a greater role in overseeing compliance with the new legislative requirements or if other clinical oversight mechanisms would be appropriate to improve the assessment process.

Objective: In some Australian states clinicians and mental health tribunal members are already required to assess a person’s decision-making capacity before involuntary treatment can be applied. Professionals in other jurisdictions will likely soon be required to do the same as mental health law reform in most Australian jurisdictions makes the assessment of decision-making capacity a central component of the process of providing unconsented psychiatric treatment. We provide a guide to the legal issues around the capacity to refuse psychiatric treatment to assist with this task. Method: We review the legislation in the four Australian states most advanced in the mental health law reform process and use examples from clinical practice and the common law to describe how decision-making capacity should be assessed by these statutory standards. Results: Clinicians and tribunal members will primarily be required to judge whether a person with mental illness can understand the information relevant to the treatment decision and whether he or she can use or weigh that information to come to a decision. A person with a mental illness is presumed to have capacity, but that presumption can be rebutted. Capacity is specific to the decision at hand and cannot be determined by the nature of the decision made. Conclusions: The information provided should assist clinicians and tribunal members to make determinations of decision-making capacity around treatment refusal in the context of mental illness.

Mental health laws in many jurisdictions currently permit coercive treatment for persons with mental illness who are thought to be at risk of harm to themselves or others. These laws are often used to provide involuntary treatment to persons who are thought to be at risk of suicide. In this article we argue that legislated coercive psychiatric treatment should not be triggered by an assessment of the likelihood of harm, including a likelihood of suicide, but should be available only where a person is found to lack capacity to make their own decisions about their own health risks, after appropriate support has been given. We suggest that current opposition this approach may find its origin in factors including uncertainties about the idea of vulnerability and its relationship to capacity as well as tendency to minimise the real costs of psychiatric treatment and coercion against the aim of suicide prevention. Given the limits of suicide risk assessment, we argue that a public policy that allows involuntary preventative detention of competent persons thought to be at risk of suicide, places too great a burden on all persons living with mental illness to be justified. We suggest that we are better placed to serve the interests and respect the human rights of people with mental illness if we respect and support the right of persons to make decisions, rather than focussing on perceived vulnerabilities and calculations of suicide risk.

Treatmentof GenderDysphoria in Children,Leaveto Intervene: Re Jamie [2012] FamCAFC 8TheFullCourtoftheAustralianFamilyCourtdealtwithan application to intervene in a case of transsexualismtreatment for children in Re Jamie [2012] FamCAFC 8.Jamie was born a nonidentical twin and was geneticallymale. However, when Jamie was two and a half yearsold, she began to identify as a female. By the time shestarted school, she lived exclusively as a female, woregirl’sclothes,wenttothegirl’stoilet,andwastreatedbyher teachers and classmates as a girl. Jamie was diag-nosed as having childhood gender identity disorder andher treatment team recommended that she, initially, begiven puberty suppressing hormones and, secondly,oestrogen treatment. The matter went to trial beforeDessau J, who concluded that the treatment was a spe-cial treatment that had to be approved by the court andwhich could not be consented to by the parents.Further, her Honour decided that she would onlyconsent to the first stage of treatment and not tothe oestrogen therapy, given that Jamie was veryyoung and that the second stage of therapy couldcommence at a later time when Jamie may be ableto make her own medical decisions. The matterhas been appealed by Jamie’s parents to the FullFamily Court, on the basis, amongst other things,that the treatment was not a “special medical pro-cedure” andcouldbeconsentedtobyparents.In Re Jamie concerns an application by a publicauthority to intervene in the matter. The publicauthority’s identity was not disclosed, but itwished to intervene in the matter given the publicinterest concerning the question of whether treat-ment for gender identity disorder was a “specialmedical procedure.” Importantly, an intervenerbecomes a party to the proceedings with all therights, duties, and liabilities of a party (at [35]).

Objective: The purpose of this paper is to use the circumstances surrounding the trial of Antony Waterlow to consider the statutory mechanisms for coercive treatment of people with mental illness in Australasia. Method: The facts in R v Waterlow are examined in the light of a review of Australasia’s mental health legislation and recent empirical work on the ability to usefully categorise patients by their likelihood to harm others. Results: Arguably a major reason for Mr Waterlow’s not receiving effective psychiatric treatment prior to the killings was that the doctors who examined him did not think they had reasonable grounds for believing that detention was necessary for the protection of others from serious harm. Conclusions: The tragedy of the Waterlow matter provides further impetus to a much wider call for the move to capacity-based mental health legislation.

Objective: To analyse, and explain to Australasian psychiatrists, recent proposed changes to the terms of coercive treatment for mental illness in Tasmania and Victoria and to place the proposals in the context of a broader human rights framework that is likely to impact the future shape of mental health legislation more generally. Methods: The Australian law reform proposals are reviewed against the requirements of numerous human rights instruments, including the recently ratified United Nations Convention on the Rights of Persons with Disabilities. Ethical and legal arguments are made to support the proposed changes and to introduce others, taking into account academic commentary on mental health law and recent empirical work on the ability to usefully categorise patients by their likelihood of harm to self and others. Results: The Victorian and Tasmanian draft mental health bills propose a new basis for compulsory psychiatric treatment in Australasia. If they become law, coercive psychiatric treatment could only be applied to patients who lack decision-making capacity. The Tasmanian draft bill also sets a new benchmark for timely independent review of compulsory treatment. However both jurisdictions propose to retain an ‘additional harm’ test which must be satisfied before patients may be treated without consent. This differs from non-psychiatric cases, where if patients are unable to consent to medical treatment for themselves, they will be entitled to receive coercive treatment if it is in their best interests. Conclusions: The proposed changes under the Tasmanian and Victorian draft mental health bills will ensure that, in line with local and international human rights obligations, only patients who lack decision-making capacity may be coercively treated for mental illness. However the continuing ‘additional harm’ criteria may breach human rights obligations by imposing a discriminatory threshold for care on patients who are unable to consent to treatment for themselves. This could be avoided by replacing the ‘additional harm’ test with a ‘best interests’ test.

When a patient presents to hospital after a suicide attempt and appears to refuse treatment, clinicians should first assess if he or she should be treated under mental health legislation, regardless of competence to refuse treatment. When it is not possible or is inappropriate to treat under mental health legislation, the person's competence to refuse treatment should be assessed. If the patient is definitely competent, his or her decision to refuse treatment should probably be honoured. If an incompetent patient carries a document refusing treatment, clinicians must determine the validity of that document as an advance care directive - including whether or not the patient was competent at the time it was written. The law around the right to refuse treatment after a suicide attempt remains unclear and, if uncertain of what to do, clinicians should provide urgently required life-saving treatment and simultaneously seek an urgent court order to clarify how they should proceed. In all but extraordinary circumstances, a patient who refuses treatment after a suicide attempt can and should be given life-saving treatment, under either mental health legislation or the common law concept of necessity.

DEAR SIR,In their recent paper, Loo et al. write passionately of what they take to be overly burdensome legal obstacles to the application of electroconvulsive therapy (ECT) and deep brain stimulat...