Context Relevant Legislation The Process of Informed Consent
The Mental Health (Compulsory Assessment andTreatment) Act Key Points This Act only applies to “Compulsory assessment and treatment of people “without their consent” in certain circumstances. Firstly there “must” be the presence of “reasonable grounds” to believe the person may have “a mental disorder” And “it is desirable that the person undergo “assessment and treatment” The Act only applies to people who will NOT consent to assessment and treatment
NOTE: Having a mental illness is not the same as having a “mental disorder” requiring treatment Also : What does treatment include ? Medication, counselling, therapy, education Query does it include or extend to drinking coffee or smoking Note that a refusal to consent to treatment does not mean the person is incompetent to consent to everything or anything else.
Another key point to remember about Informed consent is that it is not obtained by getting a signature as it is there is a process which must be followed that constitutes whether or not the consent given was or is Informed. That is through the giving of full information, with good communication that constitutes the process.
The relevant Rights in the Code here are Right 2-Fair treatment Right 5- Effective Communication Right 6- Fully informed Right 7- Informed Consent- note the caveat to this allows for other legislation to override this such as the MH Act where people subject to the Act can be compulsorily treated without their consent
However all of the above elements and Rights are the essential components of the Consent process and apply to both Voluntary admissions and all other aspects of care for those under the Act which may not relate to assessment and treatment
What does Compulsory Assessment and Treatment mean? You have no right to refuse treatment Force can be used to make you have treatment if you refuse You have no choice of who will be in charge of your treatment You can be made to stay in hospital or another facility
It is Important to remember that because significant Rights of the person are being overridden by the Mental Health Act that there are inbuilt provisions in the Act to give the Consumer Rights and Protections in this context. Eg defined and limited periods for assessment and treatment, access to District Inspectors, Section 16 Reviews, The Mental Health Tribunal
Advance Directives Right 7 (5) Code of Rights An advance directive is used in situations where the consumer can indicate a preference (s) for an event that may occur in the “future” where the Consumer may be deemed unable to consent Eg prefrred treatments and setting eg medications and Home based treatment
It is important to remember that a directive may be overridden by a Provider BUT the provider must be able to justify why in the event the Consumer claims their Rights in relation to the Directive were breached This will be difficult if the directive has been developed with the input of clinicians In this area in MH a Collaborative Recovery plan is useful for recording this information
Note Clause 3 Provider Compliance (Code of Rights) states (1) A Provider is not in breach if they have taken reasonable actions in the circumstances to give effect to the rights and comply with the duties in the Code (2) The onus is on the Provider to prove this (3) Circumstances means all relevant circumstances including the consumers clinical circumstances and the providers resource constraints
As already mentioned refusal to consent to treatment does not in itself indicate the person is incompetent to make all decisions even ones about treatment SO- It is important as a matter of good routine practice that all clinicians working with the consumer endeavour to engage the consumer’s agreement to treatment and all other aspects of care to build the therapeutic alliance and assist the consumers recovery
Where there are obvious competency issues there is always the option of using the 3PR Act regarding the consumers property and welfare rather then assuming the role of making those decisions on behalf of the consumer without affording them the protections they have under the law. This is so whether or not a consumer if under the MH Act