MENTAL HEALTH (AMENDMENT) ACT 2003 Given Royal Assent on 21 October Except for Part 2, the Act came into operation the day after it was given Royal Assent. Part 2 (amendments relating to involuntary patients) comes into effect on a day to be proclaimed. If not proclaimed prior to 1 January 2005, it comes into effect on that day.

The purpose of the Act is to: Clarify and improve the operation of the provisions for involuntary patients and the making of CTOs; Clarify and improve the operation of confidentiality provisions; Make miscellaneous amendments, including several adding to the Board’s jurisdiction and powers; and Amend the Coroners Act 1985 to ensure that the death of a CTO patient is a reportable death.

MENTAL HEALTH (AMENDMENT) ACT 2003 Key Changes The amendment of section 8(1) of the Act to reflect the introduction of the involuntary treatment order (s8(1)) “(1) The criteria for the involuntary treatment of a person under this Act are that - (a) the person appears to be mentally ill; and (b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and (c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and (e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action”.

MENTAL HEALTH (AMENDMENT) ACT 2003 Key Changes (Cont’d) (1)The only changes involve the new wording (in bold). Otherwise the criteria remain the same, but apply to both ITOs and CTOs. (2)s8 and 14 distinction disappears. Under new s14(1), for a patient on ITO, treatment setting can be considered at any time. CTO becomes the default setting.

The introduction of involuntary treatment orders and the relationship between in- patient and out-patient treatment (s12 and s14) Sections 12 and 12AA clarify involuntary treatment processes where the patient is assessed in the community (s12) or is taken to an inpatient facility (s12AA). This removes previous doubt about the capacity to place a person on a CTO without the need for inpatient admission. The making of the new Involuntary Treatment Order (ITO) will indicate a patient with involuntary status, and start the time running for the psychiatrist’s review (within 24 hours). Under s14(1) at any time the treating team should consider treatment in the community on a community treatment order (CTO).

The introduction of Treatment Plans (s19A) and the Board’s obligation to review them (s35A) New 19A: Treatment Plans “(1) The authorised psychiatrist must prepare, review on a regular basis and revise as required, a treatment plan for each patient. (2) In preparing, reviewing and revising a treatment plan for a patient, the authorized psychiatrist must take into account— (a) the wishes of the patient, as far as they can be ascertained; and (b) unless the patient objects, the wishes of any guardian, family member or primary carer who is involved in providing ongoing care or support to the patient; and (c) whether the treatment to be carried out is only to promote and maintain the patient's health or well- being; and

The introduction of Treatment Plans (s19A) and the Board’s obligation to review them (s35A) (Cont’d) (d) any beneficial alternative treatments available; and (e)the nature and degree of any significant risks associated with the treatment or any alternative treatment; and (f)any prescribed matters”. (1)Every patient should have a treatment plan. (2)The form of treatment plan is not to be prescribed. (3)The treatment plan must include an outline of the treatment to be received by the patient and most of the information currently provided in the CTO document (e.g. supervising doctor, monitoring psychiatrist etc). (4)As far as is possible, the process of developing the treatment plan should be collaborative with patients and family.

New s35A: Board Review of treatment plans “(1) On each appeal and review under this Division, the Board must review the patient's treatment plan to determine whether— (a) the authorised psychiatrist has complied with section 19A in making, reviewing or revising the plan (as the case may be); and (b) the plan is capable of being implemented by the approved mental health service. (2) The Board may order the authorized psychiatrist to revise the treatment plan, if the Board is satisfied that - (a) the authorised psychiatrist has not complied with section 19A in making, reviewing or revising the plan; or (b)the plan is not capable of being implemented by the approved mental health service”. (1)The most recent treatment plan must be attached to the Report on Involuntary Status for each patient's hearing. (2)In the early stages, I expect some hearings to take longer to complete especially those involving the legal representatives.

Case Managers must now be given a copy of the Notice of Hearing by the Authorised Psychiatrist (s32(1A)) A copy of the notice of hearing must be given to each case manager before the Board hearing.

The new power of the Board to direct the Authorised Psychiatrist to issue a CTO (s36(4) and (5)) (Cont’d) New s36: Power of Board on appeal or review of involuntary treatment orders—patients who are detained (i.e. inpatients) “(3) If the Board is satisfied that the criteria in section 8(1) apply to the patient, the Board must confirm the involuntary treatment order. (4)If the Board confirms the involuntary treatment order, the Board may order the authorised psychiatrist to make a community treatment order for the patient within a reasonable period specified by the Board, if the Board considers that the treatment required for the person can be obtained through the making of a community treatment order. (5)The Authorised Psychiatrist may apply to the Board, at any time during the period specified under sub- section (4), for the Board to reconsider an order made under that sub-section”.

The new power of the Board to direct the Authorised Psychiatrist to issue a CTO (s36(4) and (5)) (Cont’d) (1)Given current inpatient treatment practices, this reserve power is likely to be used in exceptional situations. Its scope will no doubt be tested over time. (2)Ss(6) deems a s36(5) application as a review.

The clarification of security/involuntary patient orders under both the Mental Health Act 1986 and the Sentencing Act 1991, by introducing definitions into the Act (s3) (1)Confusion about the term "hospital order" has been eliminated by several name changes (in s3 definitions): s93(1)(d) SA = hospital order (involuntary patient on court order) s93(1)(e) SA = hospital security order (security patient on court order) s16(3)(a) = hospital transfer order (involuntary patient – never used) s16(3)(b) = restricted hospital transfer order (security patient – on transfer from prison)