Liberating the long-stay patient in NSW: how to make a patient voluntary under the Mental Health Act 2007 (NSW) and the role of capacity

To the Editor

In 2015, the legislation that regulates involuntary treatment in NSW was amended to provide that clinicians should make ‘every effort that is reasonably practicable’ ‘to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care’ (Mental Health Act 2007 (NSW) s 68(h1) (Ryan and Callaghan, 2017)). Later that year, the NSW Government launched the Pathways to Community Living Initiative, a state-wide approach to recovery for people with enduring, serious mental illness who are inpatients with stays in excess of 12 months duration. Combined, these reforms provide an opportunity and impetus to change the legal status of these patients from involuntary to voluntary, allowing a more equal engagement better suited to promoting de-institutionalisation and broader recovery goals among patients who may have spent years under involuntary detention.

In considering a change from involuntary to voluntary status in long stay patients, psychiatrists should consider two issues. Can the person

1. Be provided with safe and effective care as a voluntary inpatient?

2. Competently agree to becoming a voluntary inpatient, that is, does the person understand the information relevant to staying as a voluntary inpatient and can he or she weigh that information to come to a decision?

If both of the above conditions are met, then, since it is clearly less restrictive to be a voluntary inpatient than it is an involuntary inpatient, it is no longer possible to continue to keep the patient as an involuntary patient and he or she must be discharged from that status (Mental Health Act 2007 (NSW) s 12(1)(b)).

Not all patients who will competently agree to being managed as a voluntary inpatient and who can be safely and effectively managed as such will have decision-making capacity with respect to decisions around medication. This should not preclude voluntary status. Those who lack decision-making capacity about treatment, but are nonetheless happy to assent to such treatment, may have substituted consent provided via the ‘person-responsible’ hierarchy of the Guardianship Act 1987 (NSW); (O’Neill and Peisah, 2011). However, those who lack decision-making capacity in this realm and actively refuse psychiatric treatment should probably not be considered appropriate for voluntary status.

Parcelling out decisions in this way – separating decisions for which people have capacity from decisions for which they lack capacity – provides an opportunity to promote the long-stay patient’s autonomy and to respect his or her rights, will and preferences to the greatest extent possible (United Nations, 2006: art 12).