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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.

Objectives:The aim of this study was to report on a half-day multi-stakeholder symposium on community treatment orders (CTOs) hosted by the Melbourne Social Equity Institute (MSEI), which identified research gaps and opportunities, and produced an agreed agenda for future CTO research.Methods:The MSEI convened a symposium for 22 experts in CTO research to discuss research priorities in this field in Australasia. An independent moderator elicited views and recommendations and produced a report detailing possible research projects.Results:Research on CTOs is contentious and there is a need to gather and examine information regarding both their use and utility. Due to the complexities involved, it was agreed that research should be undertaken in partnership with persons with had lived experience of mental health problems, clinicians, policymakers and other interdisciplinary stakeholders. Five key areas for future investigation were identified.Conclusions:The issues and recommendations arising from the symposium should shape the scope, nature and conduct of future research directions in the field.

Since the mid-90s, Australian law has required doctors to disclose material risks of proposed treatment. Medical practitioners have had two decades to adapt, and, by and large, patient autonomy is acknowledged and respected by obtaining 'informed consent'. While problems with obtaining consent do surface in medico-legal litigation, practitioners are generally aware of the need to do so and usually comply with requirements. However, not in obstetrics. Here, even if material risk of a serious adverse event in an attempt at vaginal birth in a given case is over 50% (as it would be in the case of a 35-year-old primigravida at 41 + 3) obtaining informed consent is the exception rather than the rule. This degree of paternalism is not just unethical and immoral. It is illegal - and it needs to change.

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.

Involuntary psychiatric treatment is currently permitted in all Australian jurisdictions. In almost all, Tasmania being a recent exception, this is the case regardless of the person's ability to make his or her own decisions about treatment. In recent years mental health legislation has come under pressure from several quarters, most urgently, as a result of Australia's ratification of the United Nations Convention of the Rights of Persons with Disabilities (CRPD). While interpretation of the Convention is not yet settled, the United Nations High Commissioner for Human Rights and the United Nations Disabilities Committee have both indicated that supported decision-making regimes must be instituted in place or substituted decision-making arrangements and that involuntary treatment is no longer permissible under the CPRD. This article argues that in order to give effect to the provisions of the CRPD, new supported decision-making regimes must be incorporated into mental health legislation but that these mus...

Objective: This paper aims to explain the meaning and implications for practice of the High Court of Australia’s finding in the negligence case, Hunter and New England Local Health District v McKenna [2014] HCA 44. Method: The facts of the case and the law of negligence are reviewed before reporting the Court’s decision. Results: The High Court found that the obligation upon doctors to provide the least restrictive option for care that was imposed by the, then applicable, Mental Health Act 1990 (NSW) was inconsistent with an obligation that might otherwise be imposed by a common law duty to have regard to the interests of those with whom a psychiatric patient may come into contact if not detained. Conclusions: The Court’s finding underlines the importance of clinicians documenting their clinical reasoning around why their negotiated management plan was the option least restrictive of the patient’s freedom and most protective of his or her human rights.

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.

Objectives: The Mental Health Act 2007 (NSW) ( MHA) was recently reformed in light of the recovery movement and the United Nations Convention on the Rights of Persons with Disabilities. We analyse the changes and describe the impact that these reforms should have upon clinical practice. Conclusions: The principles of care and treatment added to the MHA place a strong onus on clinicians to monitor patients’ decision-making capacity, institute a supported decision-making model and obtain consent to any treatment proposed. Patients competently refusing treatment should only be subject to involuntary treatment in extraordinary circumstances. Even when patients incompetently refuse treatment, clinicians must make every effort reasonably practicable to tailor management plans to take account of any views and preferences expressed by them or made known via friends, family or advance statements.

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.

If hard cases make bad law, then those interested in reforming mental health law so as to place it on a sure human rights footing ought steer well clear of treatment refusal in anorexia nervosa. In her paper in this volume, Sacha Kendall uses a perspective informed by the work of Foucault and Bauman to map out much of the treacherous terrain that these cases cover (Kendall 2014). In the recent Re E (Medical Treatment: Anorexia) [2012] EWHC 1639 (COP), a 32-year-old woman with a 20-year history of eating disorder was ordered to undergo further treatment despite her family’s objections, her treating team’s objections, and her own objections made both contemporaneously and via advance directive. Cases like this one leave many commentators wondering how decision-making capacity and best interests can be judged in these circumstances (Hayes 2012; Allen 2012; Coggon 2013), and some are even moved to question our whole approach (Richardson 2012). There are cases where a patient who is severely affected by anorexia nervosa is, as a result, unable to make a competent decision about treatment. This will either be because she is unable to understand the information relevant to a refusal of treatment—although a patient who is fully conscious and not delirious will likely be able to manage at least this—or she will be unable to weigh information about whether or not to have treatment. In these cases it is not clear how the emerging paradigm of “supported decision-making” can be utilised to assist the person to come to a decision that can properly be considered autonomous orwhether it will be useful in all cases. In at least some of these cases where a person lacks capacity, a substituted decision will still be necessary—but how should the substituted decision be made? We have argued elsewhere that any substituted decision, made in the context of mental illness, should respect and give effect to the will and preferences of the person to the greatest extent possible and, in any case, be shown to be manifestly necessary to “promote the person’s Bioethical Inquiry DOI 10.1007/s11673-013-9498-8

The inquest into the death of Kerrie Wooltorton in Norfolk, England, ignited extensive public debate on the scope of the common law right to refuse medical treatment where a patient is distressed, depressed or actively suicidal. In Australia, a patient's wishes need not be honoured if the patient is not legally competent, if he or she falls within the ambit of the compulsory treatment provisions in the mental health legislation, and possibly also if there is a recognised public interest in preventing suicide which is sufficient to override the patient's choice. This article argues that decisions about whether to give medical treatment despite an apparent refusal should be based solely on a determination of the patient's competence to make their own choice. However, the test for legal competence must take into account the person's agency in making the decision, and decisions which will effectively end the person's life must be shown to be thought through.

The mental health legislation of every state and territory in Australia allows psychiatrists to coercively detain and treat people with mental illnesses. This power is carefully regulated and every...

The inquest into the death of Kerrie Wooltorton in Norfolk, England, ignited extensive public debate on the scope of the common law right to refuse medical treatment where a patient is distressed, depressed or actively suicidal. In Australia, a patient’s wishes need not be honoured if the patient is not legally competent, if he or she falls within the ambit of the compulsory treatment provisions in the mental health legislation, and possibly also if there is a recognised public interest in preventing suicide which is sufficient to override the patient’s choice. This article argues that decisions about whether to give medical treatment despite an apparent refusal should be based solely on a determination of the patient’s competence to make their own choice. However, the test for legal competence must take into account the person’s agency in making the decision, and decisions which will effectively end the person’s life must be shown to be thought through

Imagine that you found yourself arrested in a New South Wales country town; Dubbo, for example. The local constabulary tell you that you are guilty of some offence and that you are now looking at several weeks inside. You know you are innocent. If you know the law, you are anxious, certainly, but you are not dismayed. You know that in New South Wales the police must ‘as soon as is reasonably practicable, take [you] … before an authorised officer to be dealt with according to law’.1 This will be a magistrate, or another independent person, who will review your arrest. You also know that in New South Wales ‘as soon as is reasonably practicable’ is normally interpreted as being within 24 hours, 365 days of the year. All Australians who find themselves detained against their will have a right to be brought before a court or other independent body to ensure that the terms of their detention are lawful. This ancient right is protected in the civil law through the writ of habeas corpus and in the legislative rules requiring prompt review of criminal detention in each state and territory. Timely independent review of restrictions on liberty is also applied in the medico-legal context. For example, while the Guardianship Act 1987 (NSW) allows a person responsible or guardian to consent to medical treatment for a patient who lacks capacity, if that patient objects to the treatment, the Act stipulates that a quasi-judicial body — the Guardianship Tribunal — must authorise this consent, to check that this deprivation of freedom is justified.2 The Tribunal is available to hear urgent matters around the clock and urgent orders are usually made within a week.3 At the time of writing, New South Wales law demands a similar timely independent review of measures that restrict the liberty of people with mental illnesses. The Mental Health Act 2007 (NSW) stipulates that people who are deemed ‘mentally ill persons’ must be taken before a magistrate ‘as soon as practicable’ after two doctors decide they warrant detention.4 Currently, and since 1958,5 ‘as soon as practicable’ is interpreted as meaning within a week or so. Again the short timeframe is intended to protect the civil rights of the person detained.6 If, however, changes proposed to the operation of the Mental Health Act are allowed to proceed, people living with mental illnesses in New South Wales may have lost a substantial degree of this human rights protection by the time this article is published.

In Rabone v. Pennine Care NHS Foundation Trust the Supreme Court examined the duties that the European Convention for the Protection of Human Rights and Fundamental Freedoms might place on hospitals caring for informal psychiatric patients.[1][1] We have grave concerns about the quality of the

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...