Mental Health Tribunal failing to protect rights: study

The body charged with protecting the rights of mentally ill Victorians is failing to properly and consistently apply the law, research has found.

"People shouldn't be treated differently just because they have a mental illness."

An independent review of the decisions of the Mental Health Tribunal by RMIT University and University of Sydney has found its rulings on compulsory psychiatric treatment often ignore mentally ill people’s ability to make independent decisions about their health.

Co-author Dr Chris Maylea, RMIT, said the findings show that changes to Victoria’s Mental Health Act – giving patients greater rights to make decisions about their health - have not flowed through to the tribunal’s rulings.

“People shouldn’t be treated differently just because they have a mental illness,” he said.

“People who have a mental illness and who are able to make decisions should be able to make them just like everyone else.

“People also shouldn’t be worried that the decision they get from the tribunal will depend on who happens to be sitting that day. The law should be the same for everybody.”

The research, published this month in an international law journal, reviewed 348 decisions made by the tribunal between July 2014 and June 2016.

The researchers found the tribunal often ignores a person’s decision-making ability but even when decision-making capacity is considered, different tribunal members look at it differently and in ways that are inconsistent with the relevant laws.

In 2014 the Victorian Government rewrote the State’s Mental Health Act with the express aim of “maximising individual choice” and “enabl[ing] patients to make or participate in decisions about their assessment, treatment and recovery”.

While the Mental Health Act allows people to be treated involuntarily, the researchers argue the law says that can only occur after the Victorian Mental Health Tribunal has carefully considered a person’s ability to make a decision.

Maylea said that in most areas of medicine people can only be forced to have treatment if they are unable to competently refuse it.

“This is why unconscious people can be treated at the roadside, but Jehovah’s Witnesses are able to refuse life-saving blood transfusions,” he said.

“The new Mental Health Act was supposed to give similar rights to people who refuse psychiatric treatment, which is why consideration of decision-making ability is so important.”

Co-author Associate Professor Christopher Ryan, University of Sydney, said some psychiatric treatments had significant side-effects and it was not suprising that sometimes people disagree with their doctor’s recommendations.

“It’s important to understand that simply having a mental illness does not mean that a person loses their ability to make decisions and certainly shouldn’t mean they lose their rights,” Ryan said.

“While it is true that sometimes people with these illness do have difficulties with decision-making, it’s important that doctors and the tribunal do all they can to support people’s decisions and their decision-making.”

Key findings

  1. The Victorian Mental Health Tribunal is regularly making orders for compulsory psychiatric treatment without proper consideration of the person’s decision-making capacity.
  2. When the tribunal does consider a person’s decision-making capacity, it often considers it inconsistently and in ways inconsistent with the best interpretation of the Mental Health Act.

The paper, Decision-Making Capacity and the Victorian Mental Health Tribunal, appears in the latest issue of the International Journal of Mental Health and Capacity Law (DOI: 10.19164/ijmhcl.v2017i24.685).

Dr Chris Maylea is a Lecturer in RMIT’s School of Global Urban and Social Studies and Early Career Lead at RMIT’s Centre for Applied Social Research. He is an experienced mental health social worker and mental health lawyer.

Associate Professor Christopher Ryan is a psychiatrist in public practice and associated with Sydney Health Ethics at the University of Sydney. He frequently sees people who require involuntary treatment. Both have written extensively on these issues.

Story: Gosia Kaszubska

19 March 2018

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19 March 2018

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